Punjab-Haryana High Court
Mukesh vs State Of Haryana on 21 October, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:137356
[208] IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M--29080-2024
Date of Decision : 21.10.2024
Mukesh ...Petitioner
versus
State of Haryana ....Respondent
Coram : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. M.M. Pandey, Advocate and
Mr. Umesh Pandey, Advocate
for the petitioner.
gh Mann, Addl. AG, Haryana.
Mr. Sandeep Singh
***
PANKAJ JAIN,
JAIN J. (ORAL)
[1] Prayer is for grant of regular bail to the petitioner in case FIR No.1164 dated 04.12.2022 registered under Sections 22(c) 27(a) and 29 of the NDPS Act, 1985, at Police Station Barwala, Distri District Hisar.
[2] At the outset, counsel for the petitioner submits that inadvertently, the present petition has been filed under Section 439 Cr.P.C. and on his oral request, the same be treated one under Section 483 of BNSS.
[3] Allowed as prayed for. Pre
Present
sent petition is treated as petition filed under Section 483 of the BNSS. [4] As per the case of prosecution, the petitioner was found having possession of 5000 tablets of Tramadol Hydrochloride 100 mg on 04.12.2022 near Anant Ram Hospital, Barwala, Di District strict Hisar. The quantity 1 of 7 ::: Downloaded on - 26-10-2024 03:31:27 ::: Neutral Citation No:=2024:PHHC:137356 CRM-M-29080 29080-2024 -2- of the contraband allegedly recovered from the petitioner is more than the commercial quantity.
[5] Custody certificate dated 16.09.2024 has been filed in Court today. The same is taken on record.
record. As per the custody certificate, the petitioner is behind bars for more than 01 year 10 months. [6] Counsel for the petitioner submits that the petitioner oner has clean antecedents and there are 20 prosecution witnesses and till now now, none has been examined examined despite the fact that the petitioner is in custody for more than 01 year 10 months.
[7] Learned State counsel is not in a position to dispute the aforesaid facts.
[8] I have heard learned counsel for the parties and have carefully gone through the records of the case. [9] Learned counsel for the petitioner relies upon order passed by the Apex Court in the case of Rabi Prakash Vs. The State of Odisha passed in Special Leave to Appeal (Crl.) No(s). 4169 of 2023 decided on 13.07.2023 wherein it has been held as under ::-
"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re:
formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militate militatess against the most precious fundamental right guaranteed under Article 21 of the 2 of 7 ::: Downloaded on - 26-10-2024 03:31:28 ::: Neutral Citation No:=2024:PHHC:137356 CRM-M-29080 29080-2024 -3- Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."
[10] Earlier to Rabi Prakash's case (supra) also Apex Court has consistently held that the prolonged incarceration has to be considered de hors bar contained under Section 37 of the NDPS Act. The Supreme Court in order dated 22.08.2022 passed in Special Leave to Appeal (Crl.) 2022 titled as "Mohammad Salman Hanif Shaikh Vs. The State No.5530-2022 of Gujarat, had held as under:-
We are inclined to release the petitioner on bail only on the "We ground that he has spent about two years in custody and con conclusion clusion of trial will take some time.
Consequently, without expressing any views on the merits of the case and taking into consideration the custody period of the petitioner, this special leave petition is accepted and the petitioner is ordered to be released ased on bail subject to his furnishing the bail bonds to the satisfaction of the Special Judge/ concerned Trial Court.
The special leave petition is, accordingly, disposed of inthe above terms.
Pending application(s), if any, shall also stand disposed of of."
[11] Supreme Court in order dated 07.02.2020 passed in Criminal Appeal No.245/2020 titled as "Chitta Biswas Alias Subhas Vs. The State of West Bengal" was pleased to grant concession of bail to the petitioner (therein) in a case where the custody was of 1 year and 7 months approximately. The relevant portion of the said order dated 07.02.2020 is as under: -
"Leave granted.
3 of 7 ::: Downloaded on - 26-10-2024 03:31:28 ::: Neutral Citation No:=2024:PHHC:137356 CRM-M-29080 29080-2024 -4- This appeal arises out of the final Order dated 30.7.2010 passed by the High Court of Calcutta in CRM No.6787 of 2019.
The instant matter arises out of application preferred by the appellant under Section 439 Cr.P.C. seeking bail in connection with Criminal Case No.146 of 2018 registered with Taherpur Police Station for offence punishable under Secti Section 21-C C of the Narcotic Drugs and Psychotropic Substances Act, 1985.
According to the prosecution, the appellant was found to be in possession of narcotic substance i.e. 46 bottles of phensydryl cough syrup containing codeine mixture above commercial quan quantity.
The appellant was arrested on 21.07.2018 and continues to be in custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.
Without expressing any oopinion pinion on the merits or demerits of the rival submissions and considering the facts and circumstances on record, in our view, case for bail is made out. We therefore, allow this appeal and direct as under:
(a) Subject to furnishing bail bond in the sum of Rs.2 lakhs with two like sureties to the satisfaction of the Judge, Special Court, NDPS Act, Nadia at Krishnagar, the appellant shall be released on bail.
(b) The Special Court may impose such other conditions as it deems appropriate to ensure the presence and participation of the appellant in the pending trial. With the aforesaid directions, the appeal stands allowed."
[12] In order dated 05.08.2022 in Criminal Appeal No.1169 of 2022 titled as "Gopal Krishna Patra @ Gopalrusma Vs. Union of India," the Supreme reme Court was pleased to observe as under: -
"Leave granted.
This appeal challenges the judgment and order dated 25.01.2022 passed by the High Court Of Madhya Pradesh, Principal Seat at Jabalpur, 4 of 7 ::: Downloaded on - 26-10-2024 03:31:28 ::: Neutral Citation No:=2024:PHHC:137356 CRM-M-29080 29080-2024 -5- in MCRC No.117/2022. The appellant is in custody since 18.06.2020 in connection with crime registered as N.C.B. Crime No.02/2020 in respect of offences punishable under Sections 8, 20, 27 27-AA, AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The application tion seeking relief of bail having been rejected, the instant appeal has been filed.
We have heard Mr. Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr. Sanjay Jain,learned Additional Solicitor General for the respondent.
Considering ering the facts and circumstances on record and the length of custody undergone by the appellant, in our view the case for bail is made out.
We therefore, direct that:
(a) The appellant shall be produced before the Trial Court within five days from today.
(b) The Trial Court shall release the appellant on bail subject to such conditions as the Trial Court may deem appropriate to impose.
(c) The appellant shall not in any manner misuse his liberty.
(d) Any infraction shall entail in withdrawal of the benef benefit it granted by this Order.
The appeal is allowed in aforesaid terms." [13] In order dated 01.08.2022 in Special Leave to Appeal (Crl.) No.5769/2022 titled as "Nitish Adhikary @ Bapan Vs. The State of West Bengal" Supreme Court has observed as under: -
"As per the office report dated 29.07.2022, copy of the show cause notice along with Special Leave Petition was supplied to the Standing Counsel for the State of West Bengal and separate notice has been served on the State also. However, no one has entered appearance on their behalf.
The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS Act, 5 of 7 ::: Downloaded on - 26-10-2024 03:31:28 ::: Neutral Citation No:=2024:PHHC:137356 CRM-M-29080 29080-2024 -6- registered at Police Station Bongaon, West Bengal.
During thee course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.
Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.
The petitioner iss accordingly, directed to be released on bail subject to him furnishing bail bonds to the satisfaction of the Trial Court.
The Special Leave Petition is disposed of on the aforestated terms. Pending application(s), if any, shall stand disposed of."
[14] The petitioner is behind bars since 04.12.2022. By now, out of 20 prosecution witnesses, none has been examined.
[15] Without ithout commenting anything on the merits of the case but keeping in view the incarceration suffered by the petitioner i.e. more than han 01 year 10 months in the present case and that the trial has proceeded at snail's pace, the present petition deserves to be allowed allowed.. Petitioner is ordered to be released on regular bail, subject to his furnishing bail/surety bonds to the satisfaction of of the learned Trial Court/Magistrate, concerned. However, the same shall be subject to the following conditions:
conditions:-
(i) The petitioner shall not mis mis-use use the liberty granted.
(ii) The petitioner shall not tamper with any evi-
ev dence oral or documentary during the trial.
(iii) The petitioner shall not absent himself on any date before the trial.
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(iv) The petitioner shall not commit any offence while on bail.
(v) The petitioner shall deposit his passport, if any with the trial Co Court.
(vi) The petitioner shall give his cellphone number to the police authorities and shall not change his cell-phone phone number without permission of the trial Court.
(vii) The petitioner shall not in any manner try to delay the trial.
[16] In case of breach of any of the aforesaid conditions and those which may be imposed by the Trial Court, the prosecution shall be at liberty to move cancellation of bail of the petitioner.
[17] Ordered accordingly.
(PANKAJ JAIN)
JUDGE
21.10.2024
'R. Sharma'
Whether speaking/ reasoned : Yes/No
Whether reportable : Yes/No
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