CRM-M-32056-2023 (O&M) 2023:PHHC:103343
223 (2nd case)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-32056-2023 (O&M)
Date of decision:09.08.2023
Gurbhej Singh ....Petitioner
Versus
State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present: Mr. Veneet Sharma, Advocate
for the petitioner.
Ms. Guramrit Kaur, DAG, Punjab.
****
ARUN MONGA, J. (ORAL)
After being declined bail by the trial Court, petitioner before this Court seeks his release as undertrial in case bearing FIR No.164 dated 26.07.2022, registered under Section 21, 23, 29of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act') and sections 42 and 52-A of Prison Act at Police Station,Special Task Force (STF) District STF Wing, SAS Nagar, (Mohali).
2. Per prosecution version, on the basis of secret information, one polythene envelope, containing 500 grams Heroin was recovered from the dash-board of a vehicle, in which the petitioner was travelling as passenger at the time of alleged recovery. Per report of Chemical Examiner, sample contained Diacetylmorphine.Petitioner was arrested from the spot on 26.07.2022 and has been in custody ever since.
3. Learned counsel for petitioner submits that petitioner has beenfalsely implicated in this case. He has clean antecedents and has been implicated in the present case on account of involvement of his brother, namely, Harbhej Singh. He too is in custody and allegedly involved in some other case under NDPS Act as well. Petitioner is stated to be a GranthiPathi (priest) in Sri Harmandir Sahib at Amritsar. He has been reciting Gurbanisince the year 2013.
3.1 He further submits that nothing is to be recovered from the petitioner and he is not required for further custodial interrogation. There is no likelihood of petitioner VANDANA tampering with evidence and/or influencing prosecution witnesses. He further submits 2023.08.10 10:21 I attest to the accuracy and integrity of this order/judgment Page 1 of 3 CRM-M-32056-2023 (O&M) 2023:PHHC:103343 that the provisions of Section 42 of the NDPS Act have not been complied with. Further contends that per Chemical Examiner's report dated 21.10.2022 (Annexure P-4), it is stated that the sample contained Diacetylmorphine but the percentage of the said substance was not given in the said report. He further urges that further incarceration of petitioner would be violative of his right enshrined under Article 21 of the Constitution of India and bar of Section 37 NDPS Act can be diluted bearing in mind the right to a speedy trial, given that petitioner is behind bars since 26.07.2022 and trial is likely to take a long time to conclude.
4. On the other hand, learned State counsel, opposes the bail petition. She submits that petitioner has committed a serious offence.In case, petitioner is granted concession of bail, there are chances of his fleeing from justice. She further submits that recovery of contraband falls within the ambit of commercial quantity and rigors of Section 37 of the NDPS Act would be attracted in the present case. However, she admits that there is no other case pending against the petitioner.
5. I have heard rival contentions of learned counsels for the parties and have gone through the case file.
6. On a Court query, under instructions from SI Harbhej Singh, learned State counsel submits that challan has already been presented.Charges wereframed on 06.05.2023. There are 18 prosecution witnesses out of them,none hasbeen examined till date.Investigation is thuscomplete qua petitioner, he is not required for custodial interrogation.Bail allows an accused to maintain hisfreedom until his guilt or innocence is determined.Commencement/conclusion of the trial is likely to take quite sometimeas it is proceeding at a snail pace.Whereas petitioner has beenlanguishing in jail for more than01 year in preventive custody, beingbehind bars since 26.07.2022.
7. Petitioner is being kept in preventive custody merely on anunfounded suspicion that if he is let out, he may either tamper with evidence and/ orinfluence witnesses. There is no documentary evidence and it is more in the nature ofFSL report qua contraband, already filed in the Court below to which accused has noaccess. There is no probability of tampering with evidence as the same has already beenseized by the VANDANA 2023.08.10 10:21 I attest to the accuracy and integrity of this order/judgment Page 2 of 3 CRM-M-32056-2023 (O&M) 2023:PHHC:103343 investigating agency. As regards witnesses, they are all official andtherefore, they are unlikely to be influenced, even if there is any such apprehension bythe prosecution.
8. Be that as it may, offence allegedly committed by petitioner is of non- violent nature and in that sense his release on bail is not a threat to society at large by committing any violent crime. In any case, allegations against petitioner are matter of trial.At this stage, there appears to be a reasonable ground that petitioner may not be guilty of the alleged offence. He is unlikely to commit any offence while on bail.
9. Petitioner is stated to be 26-year old and havinga 3-year old daughter and wifeto look after. Being a family person with clean antecedents, it is unlikely that he is flight risk or will flee from the trial proceedings.
10. Considering the overall scenario and without commenting on the merits of the case, the instant petition is allowed. I am of the view that no useful purpose would be served to keep the petitioner in further preventive custody.
11. Accordingly, petitioner is ordered to be released on bail on his furnishing bail bonds and surety bonds to the satisfaction of Ld. trial Court, where his case is being tried and in case he/she is not available, before learned Duty Judge, as the case may be.
12. In case, petitioner is found to be involved or gets involved in any offence while on bail, the prosecution shall be at liberty to seek cancellation of his bail in the instant case.
13. It is made clear that any observations and/or submissions noted hereinabove shall not have any effect on merits of the case as the same are for the limited purpose of hearing the instant bail petition alone and learned trial Court shall proceed without being influenced with this order.
14. Pending application(s), if any, shall also stand disposed of.
( ARUN MONGA )
JUDGE
09.08.2023
vandana
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
VANDANA
2023.08.10 10:21
I attest to the accuracy and
integrity of this order/judgment Page 3 of 3