While taking a very serious view of illegal trafficking of contraband smuggled in by drones from Pakistan, the Punjab and Haryana High Court at Chandigarh in a most learned, laudable, landmark, logical and latest oral judgment titled Sher Singh vs State of Punjab in CRM-M-54048-2024 and cited in Neutral Citation No:=2024:PHHC:162853 that was decided on 6.11.2024 has firmly refused to grant bail to a man who is accused of illicit trafficking of 50 grams of heroin underscoring that where 50 grams of heroin have been seized from the petitioner, the method of trafficking evidenced by the contraband being smuggled from Pakistan via drone highlights the sophisticated network facilitating such illegal trade which demands a resolute and uncompromising response.

It was also explicitly made clear by the Bench that the quantity involved is categorized as intermediate Quantity does not by itself bestow an automatic right to bail. The Bench was of unequivocal opinion that even if the stringent provisions of Section 37 of the NDPS Act do not apply, the petitioner cannot be granted an advantage or permission to seek bail especially when 50 grams of Heroin was recovered.

It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice Sandeep Moudgil who authored this robust judgment categorically held that, Granting bail at this stage could inadvertently signal a tacit approval or encouragement of such illegal activities. How can this be ever allowed to take place considering its far reaching implications on society? How can the rule of law be allowed to be taken for granted by those who have cross border connections which in itself directly poses a serious threat to the national security?

It was also very rightly taken into account by the Bench that the petitioner’s criminal history marked by involvement in three other similar cases raises serious concerns about the likelihood of reoffending and there is a distinct possibility that if granted bail, the petitioner will once again partake in this unlawful enterprise. These observations were made by the Bench while hearing the bail plea of Sher Singh who was accused under Sections 21, 29 and 21(c) of NDPS Act, 1985 and Sections 10, 11 and 12 of Air Craft Act, 1934 registered at Taran Taran district of Punjab. The High Court thus finally deemed it fit to reject the bail plea. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sandeep Moudgil of Punjab and Haryana High Court at Chandigarh sets the ball in motion by first and foremost putting forth in para 1 that:
The jurisdiction of this Court has been invoked under Section 439 of Cr.P.C. for grant of regular bail to the petitioner in case FIR No. 30, dated 19.03.2024, under Sections 21, 29 and (later on added 21(c) of NDPS Act, 1985 and Section 10, 11 and 12 of Air Craft Act,1934 vide rapat no.20 dated 06.09.2024) registered at Police Station Khalra, District Taran Taran.

Most significantly and so also most remarkably, the Bench encapsulates in para 4 what constitutes the cornerstone of this notable judgment postulating that:
In everyday terms, the principle of law dictates that bail is the general rule, while jail is the exception. However, this Court acknowledges that the power to grant or deny bail is extraordinary and must be exercised with caution. It is well-established that when considering a bail application (whether pre-arrest or regular bail), the Court must form a prima facie opinion as to whether reasonable grounds exist to support the accusation, or if the accusation is frivolous and baseless possibly made with the intention of harming or humiliating the individual, or falsely implicating them in the crime.

This evaluation must be conducted in the light of self-imposed restrictions and the broader legal parameters outlined. This Court is mindful that, according to the legal mandate rendered by Hon’ble Supreme Court in Criminal Appeal No. 3840 of 2023, titled Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, when considering a bail application, the Court is not obligated to meticulously examine the evidence gathered by the Investigating Agency.

However, the Court must consider several factors, including the nature of the accusation, the type of evidence collected in support, the severity of the punishment for the alleged offences, the character of the accused, the unique circumstances surrounding the accused, the likelihood of securing the accused’s presence during trial, the possibility of witness tampering, and the broader interests of the public or State. In the light of these factors, when assessing a bail application, the Court is required to form a prima facie opinion based on these broad guidelines, without delving into the merits of the evidence, as doing so could potentially prejudice the rights of both the accused and the prosecution.

To evaluate the bail application under the NDPS Act, this Court finds it necessary to revisit the Preamble of the Act, which in essence states that An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith.

While addressing the objectives of the NDPS Act, the Hon’ble Supreme Court in the case of Durand Didier v Chief Secretary, Union Territory Of Goa (1990) 1 SCC 95 emphasized that the rampant issue of clandestine smuggling and illegal trafficking of drugs and substances has led to widespread drug addiction, particularly among adolescents and youth. This has had a harmful and devastating impact on society. With grave concern, it was noted that the organized activities of criminal groups and the illegal importation of narcotic drugs and psychotropic substances into the country have caused a significant increase in drug addiction, especially among young people and students, affecting both genders. The menace has grown to alarming proportions in recent years.

Consequently, to effectively combat and eliminate this growing threat, which is causing severe and harmful effects on society as a whole, Parliament, in its wisdom, enacted the NDPS Act of 1985, introducing provisions that mandate minimum imprisonment and fines for such offences. The tactics employed by drug peddlers engaging in the narcotics trade often involve starting with small or intermediate quantities, banking on the assumption that, even if apprehended, they will be granted bail.

This, however, cannot be the intended purpose of the law. Such individuals, involved in trafficking even modest amounts of contraband, are akin to termites eroding the fabric of society. It is imperative that, when considering bail applications from those engaged in the trafficking of small or intermediate quantities, the Court takes a firm and resolute stance, addressing them with the utmost severity to curb this insidious menace.

Merely because the quantity involved is categorized as Intermediate Quantity does not, by itself, bestow an automatic right to bail. Granting bail to those accused of trafficking or peddling highly dangerous substances such as Heroin/Chitta would essentially offer carte blanche for illegal activities. Such a decision would embolden these individuals to persist in their illicit trade, operating under the misguided belief that even if apprehended, they could be swiftly released on bail. It is imperative that such conduct and the false sense of impunity it fosters, be dealt with decisively, as they pose a profound threat to the very fabric of our society and nation. The modus operandi of the masterminds behind the illegal trafficking whether dealing in small or intermediate quantities must be met with unwavering severity.

The legislative intent and the rule of law must be rigorously enforced, and cannot be allowed to be undermined, irrespective of the quantity in question. In the esteemed view of this Court, even if the stringent provisions of Section 37 of the NDPS Act do not apply, the petitioner cannot be granted an advantage or permission to seek bail, especially when 50 grams of Heroin/Chitta (the contraband in question) was recovered from him. Granting bail at this stage could inadvertently signal a tacit approval or encouragement of such illegal activities.

The Himachal Pradesh High Court has, in recent times, ruled on the case of Surinder Kumar vs. State of Himachal Pradesh bearing no. Cr.MP(M) No.489 of 2024 that

9. The learned counsel for the petitioner submits that in the instant case, once the bail petitioner is involved in contraband relating to intermediate quantity of Heroin/Chitta [5.65 grams], therefore, the petitioner has claim for bail as of a right. In considered view of this Court, the plea is without any substance for the reason that merely because intermediate quantity of Heroin/Chitta is involved, the same cannot confer any right for anticipatory bail. In facts of this case, the alleged contraband was recovered from the bail petitioner. Permitting enlargement on bail shall certainly amount to granting leverage or licence to the petitioner and others, who indulged in nefarious activities with the hope and belief that they will be enlarged on bail by the Court(s). The dangerousity and killing instinct of Heroin/Chitta (as involved in this case) also restrains the Courts from exercising its discretion in favour of the bail petitioner, from where Heroin/Chitta (5.65 grams) was recovered.

Even a pinch of touch out of one gram of Heroin (Chitta) is sufficient enough to make a person initially addict, without which the person becomes repulsive. Such addiction for them leads to peddling for own sustenance and for easy trading. It is high time that the rule of law needs to be strictly enforced and the societal interests are safeguarded and protected; lest tomorrow one and all may face repentance, repentance and repentance only and nothing more. In the interests of society and to enforce rule of law as discussed hereinabove and once the alleged contraband (5.65 grams) has been recovered from the bail petitioner, the prayer for enlargement on bail is without merit at this stage.

Most forthrightly, we see that the Bench while justifying rejecting the petition propounds in para 5 holding that:
Turning to the merits of the case in hand, where 50 grams of heroin have been seized from the petitioner, the method of trafficking evidenced by the contraband being smuggled from Pakistan via drone highlights the sophisticated network facilitating such illegal trade, which demands a resolute and uncompromising response. Furthermore, the petitioner’s criminal history, marked by involvement in three other similar cases, raises serious concerns about the likelihood of reoffending. There is a distinct possibility that, if granted bail, the petitioner will once again partake in this unlawful enterprise. To grant bail at this stage would, in effect, subtly convey a tacit endorsement or unintentional encouragement of such nefarious activities.

Finally, the Bench then concludes by holding in para 6 that:
In the light of above, dictums and discussions made and the modus operandi of the kingpins engaged in illicit activities, whether trafficking in small or intermediate quantities, must be met with unwavering resolve and stringent action. The intent of the legislature and the sanctity of the rule of law must be upheld at all costs, and cannot be allowed to be undermined, regardless of the quantity involved. Hence, the same stands dismissed with no order as to costs.

In conclusion, we thus see that the Punjab and Haryana High Court has made it indubitably clear in this noteworthy judgment that whether drug trafficking is in small or intermediate quantities, must be met with unwavering resolve and stringent action. The intent of the legislature and the sanctity of the rule of law must be upheld at all costs, and cannot be allowed to be undermined, regardless of the quantity involved. It was also made absolutely clear by the Chandigarh High Court that just because the quantity involved is categorized as intermediate quantity does not, by itself, bestow an automatic right to bail. The Court also very rightly took into account that the drug trafficking was being conducted by being transported from Pakistan via drone which undoubtedly has grave security implications as they pose a profound threat to the very fabric of our society and nation as was acknowledged also so very candidly by the Bench in this leading case! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh