'Surprising' That Pre-Arrest Bail Denied In 3gm Heroin Case, Punjab & Haryana HC Says Courts Must Not Deny Bail In Minor Offences Despite Criminal History

Expressing surprise that pre-arrest bail was rejected by the Sessions Court to an accused in case involving merely 3 grams of heroin, the Punjab & Haryana High Court said that bail should not be rejected in minor offences on the ground that accused has criminal history.

The High Court said, "Although the legal system upholds the principle that crime, not the individual, should be condemned, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles, and a recidivist often operates on precarious ground, where the weight of a significant criminal record creates an increasingly challenging terrain. Nonetheless, where the offense for which bail is sought is minor, such that arrest is generally unwarranted, or bail would ordinarily be inevitable, courts must not deny bail solely as a punitive measure intended to serve as a pre-trial deterrent."

It clarified that adjudicating a bail petition of an accused with a prior criminal record places a significant and exacting responsibility on courts to exercise judicial discretion in a manner that is both reasoned balanced to consider the countervailing impacts on the freedom of an accused and that of society and free from arbitrariness, "as arbitrariness is antithetical to the rule of law."

A single judge bench said that consideration of an accused's criminal history "should be limited to cases where convictions have been secured, including those resulting in suspended sentences, and all pending FIRs in which the petitioner is formally arraigned as an accused."

However, "cases that culminated in acquittals, discharges, quashed FIRs, withdrawals of prosecution, or the filing of closure reports by the investigative authorities must be excluded", it added.

These observations were made while hearing the anticipatory bail of accused Jogindro Bai booked under Sections 20(a) & 29 of the NDPS Act for allegedly possessing over 3 grams of heroin.

According to the prosecution, one Fateh was apprehended with 2.28 grams of heroin who confessed that he procured the same from one Henna. Later Henna was found in possession of 1 gram heroin who confessed before Police that she got the contraband from Jogindro Bai.

After examining the submissions, the Court remarked that "surprisingly and strangely" the Sessions Court denied pre-arrest bail plea of Jogindro Bai.

The Court noted that the quantity the present case case pertains to possession of an amount of substance whose weight is less than the weight categorized as a "small quantity" under the NDPS Act, a classification indicative of the lesser gravity of the offense.

It highlighted that, "Police rightly did not arrest the petitioner because there was no need for custodial interrogation; if they intended to arrest the petitioner, it was not impossible. Probably for this reason, a perusal of the reply does not point out the steps taken to arrest the accused."

"The offenses involving such quantities are triable by the Magistrates. In the present instance, the petitioner was denied bail for possessing 3.45 grams (2.28 + 1.17) of heroin, a quantity representing only 1.38% of the upper threshold for the intermediate category, owing to her prior criminal antecedents, notwithstanding the insignificance of the quantity in question, which is demonstrably minor," the bench noted.

The Court opined that the pre-trial incarceration should not be a replica of post-conviction sentencing. 

In the light of the above, the Court allowed the plea.

Mr. Sudhir Rana, Advocate for the petitioner.

Mr. Aashish Bishnoi, DAG, Haryana.

Title: Jogindro Bai v. State of Haryana

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