Vipul Goyal vs State Of Haryana
2021 Latest Caselaw 2875 P&H

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CRM-M-9492-2021


           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                          CHANDIGARH
(207)
                                                         CRM-M-9492-2021.
                                                Date of Decision:-05.10.2021.

Vipul Goyal

                                                                ......Petitioner

                                     Versus

State of Haryana
                                                               ......Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

                    ****

Present:      Mr. Sanjiv Gupta, Advocate for the petitioner.

              Mr. Praveen Bhadu, AAG, Haryana.

                    ****

VIKAS BAHL, J. (Oral)

This is the second petition under Section 439 Cr.PC. for grant

of regular bail to the petitioner in case FIR No.656 dated 05.10.2019 under

Section 22 of the NDPS Act, registered at Police Station City Sirsa, District

Sirsa.

Learned counsel for the petitioner has submitted that in the

present case, the petitioner is a registered Pharmacist and has licence to sell

stock or exhibit (or offer for sale, or distribute drugs by retail other than

those specified in (Schedules C, C(1) & X). For the said purpose, reference

has been made to Annexures P-3 and P-4, which are Form 20 and Form 21

issued in favour of the Kailash Pharma, of which the petitioner is stated to

be the sole proprietor. It has been highlighted that the date of the said

licence is 14.06.2019 and the said licence is in operation and has not been

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cancelled. It is, thus, submitted that on the date when the alleged recovery

had taken place i.e. 05.10.2019, the petitioner, in fact, had a licence to keep

the tablets in question. It is further submitted that the petitioner has been in

custody since 05.10.2019 and except for the period of 04 weeks for which

he was granted interim bail, the petitioner has been in custody and, thus, the

period of almost 01 year and 11 months has elapsed since the petitioner has

been in custody. It is also argued that the petitioner is not involved in any

other case and it has been perversely observed in the order dated

16.02.2021 passed by the Additional Sessions Judge, Sirsa, that there are 03

more cases against the petitioner. It is submitted that the earlier bail

application of the petitioner was dismissed as withdrawn on 26.10.2020 and

a period of more than 11 months has elapsed since then and in the present

case, the challan has been presented and there are 14 prosecution witnesses

out of which only 02 have been examined and, thus, the trial is likely to

take time and thus, it is prayed that the petitioner deserves the concession of

regular bail.

Learned counsel for the petitioner, in order to overcome the

bar under Section 37 of the NDPS Act, has relied upon several judgments.

The said judgments have been collated hereinbelow:

 Judgment of the Hon'ble Supreme Court in Criminal Appeal No.965

of 2021 titled as Dheeren Kumar Jaina v. Union of India.

 Judgment of a Co-ordinate Bench titled as Ankush Kumar @ Sonu

v. State of Punjab reported as 2018 (4) RCR (Criminal) 84; which

was further challenged in the Hon'ble Supreme Court vide SLP

(Criminal) Diary No.42609 of 2018 and the same was upheld.

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 Judgment of a Co-ordinate Bench in CRM-M-20177-2020 titled as

Narcotic Control Bureau v. VipanSood and another and the same

was upheld by the Hon'ble Supreme Court vide order dated

24.08.2021 in a Petition for Special Leave to Appeal (Crl.)

No.5852/2021.

 Judgment of the Hon'ble Supreme Court in Criminal Appeal No.668

of 2020 titled as "Amit Singh @ Moni v. Himachal Pradesh.

 Judgment of the Hon'ble Supreme Court in Criminal Appeal No.827

of 2021 titled as Mukarram Hussain v. State of Rajasthan and

another.

 Judgment of a Co-ordinate Bench of this Court in CRM-M 10343 of

2021 titled as "Ajay Kumar @Nannu v. State of Punjab".

Further, reliance has also been placed upon the judgment of a

Division Bench of this Court in CRM-8262-2021 in CRA-S-3721-SB of

2015 titled as, Harpal Singh v. National Investigating Agency and

another, dated 31.08.2021, wherein the Division Bench was pleased to

grant suspension of sentence in a case where the recovery was of

commercial quantity. It has been argued that in the said Division Bench

judgment, it had been noticed that the grounds for regular bail stand on

better footing than for suspension of sentence, which is after conviction.

Per contra, learned State counsel, on instructions from ASI

Balwan, has submitted that in the present case, the recovery which has been

effected is of tablets which would constitute 290 grams of Alprazolam and

the same would, thus, come within the meaning of commercial quantity and

has, therefore, opposed the bail application. However, the learned State

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counsel could not dispute the other factual aspects, moreso, with respect to

the fact that the petitioner is not involved in any other case and the fact that

the petitioner has been in custody since 05.10.2019 and also with respect to

the petitioner having the valid licence (Annexures P-3 and P-4).

This Court has heard and considered the arguments advanced

by the learned counsel for the parties.

In the present case, as is apparent from the record, the

petitioner being a registered Pharmacist has a licence issued to the firm i.e.,

Kailash Pharma for licence to sell, stock or exhibit (or offer for sale, or

distribute drugs by retail other than those specified in (Schedules C, C(1) &

X), of which the petitioner is the sole proprietor. The said licence is dated

14.06.2019 and was valid on the date when the alleged recovery had been

made i.e., on 05.10.2019. The said aspect would be a crucial aspect to be

considered at the time of trial and, thus, the petitioner has a valid point in

his favour. The petitioner has been in custody since 05.10.2019 and other

than 04 weeks of interim bail that was granted, the petitioner has been

custody till date, which would be for 01 year 11 months approximately. It

is however clear that the petitioner is not involved in any other case and

there are 14 prosecution witnesses, out of which only 02 have been

examined and, thus, the trial is likely to take time, moreso, in view of the

present COVID-19 pandemic. The earlier bail application of the petitioner

was withdrawn on 26.10.20211 and a period of 11 months has elapsed since

then.

Learned counsel for the petitioner has also highlighted the fact

that in various cases where recovery of commercial quantity was involved,

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there the Hon'ble Supreme Court as well as this Court have, on the basis of

arguable points in the bail application as well as by considering the period

of custody and the merits of the case, granted bail/suspension of sentence.

Some of the said judgments are being discussed hereinafter. In Criminal

Appeal No.965 of 2021 titled as Dheeren Kumar Jaina v. Union of India,

the Hon'ble Supreme Court in a case where allegation in the chargesheet

was with respect to 120 kg of contraband i.e. "ganja", thus, being of

commercial quantity, was pleased to grant bail after setting aside the order

of the High Court where the said application for grant of regular bail had

been rejected.

A co-ordinate Bench of this Court in a detailed judgment titled

as Ankush Kumar @ Sonu v. State of Punjab reported as 2018 (4) RCR

(Criminal) 84, had considered the provision of Section 37 of the NDPS Act

in extenso and had granted bail in a case which involved commercial

quantity. The relevant portion of the said judgment is reproduced as under:

" xxx--xxx--xxx

But, so far as second part of Section 37 (1) (b) (ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit 'any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit 'any

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offence' or 'offence under NDPS Act' after being released on bail, then this court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, this satisfaction of the Court in this regard is neutral qua future possible conduct of the petitioner."

The Special Leave Petition (Criminal) Diary No.42609 of

2018 filed against the aforesaid judgment of the Co-ordinate Bench of this

Court, was dismissed by the Hon'ble Supreme Court.

Further, vide order dated 25.02.2021 in CRM-M-20177-2020,

a Co-ordinate Bench of this Court granted regular bail to an accused who

was involved in a case wherein recovery was of 3.8 kgs of "charas"

(commercial quantity) after being in custody for 1 year and 7 months. The

said order was upheld by the Hon'ble Supreme Court vide order dated

24.08.2021 in a Petition for Special Leave to Appeal (Crl.) No.5852/2021

titled as "Narcotic Control Bureau v. Vipan Sood and another".

The Hon'ble Supreme Court of India vide order dated

12.10.2020 passed in Criminal Appeal No.668 of 2020 titled as "Amit

Singh @ Moni v. Himachal Pradesh" was pleased to grant regular bail in a

case involving 3 kgs and 800 grams of "charas" primarily on the ground of

substantial custody and also, the fact that the trial would likely take time to

conclude.

In Criminal Appeal No.827 of 2021 titled as Mukarram

Hussain v. State of Rajasthan and another, the Hon'ble Apex Court vide

judgment dated 16.8.2021 was also pleased to grant bail wherein the

quantity of the contraband was commercial in nature.

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A Co-ordinate Bench of this Court in CRM-M 10343 of 2021

titled as Ajay Kumar @Nannu v. State of Punjab and other connected

matters, vide Order dated 31.03.2021, after taking into consideration the

stipulations of Section 37 of the NDPS Act, was pleased to grant regular

bail in a case involving commercial quantity and a condition was imposed

on the petitioner therein while granting the said bail and the said condition

was incorporated in para 21 of the said judgment, which reads as under:

"21. However, the petitioners are granted regular bail subject to the condition that they shall not commit any offence under the NDPS Act after their release on bail and in case of commission of any such offence by them after their release on bail, their bail in the present case shall also be liable to be cancelled on application to be filed by the prosecution in this regard."

Further, a Division Bench of this Court vide judgment dated

31.08.2021 passed in CRM-8262-2021 in CRA-S-3721-SB of 2015 titled

as, Harpal Singh v. National Investigating Agency and another, granted

suspension of sentence in a case where the recovery was of commercial

quantity. In the abovementioned order, the Division Bench had taken into

consideration the right vested with an accused person/convict under Article

21 of the Constitution of India with regard to speedy trial. Further, the

judgment of Hon'ble the Supreme Court in State (NCT of Delhi) v. Lokesh

Chadha; (2021) 5 SCC 724 was also taken into account and the provisions

of Section 37 of NDPS Act were considered and the sentence of the

applicant-appellant therein was suspended after primarily considering the

period of custody of the applicant-appellant therein and also the fact that

the appeal was not likely to be heard in near future. Reference in the order

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was also made to the Division Bench judgment of this Court in Daler

Singhv. State of Punjab; 2007 (1) R.C.R. (Criminal) 316 and the view

taken in Daler Singh's case (supra) was reiterated and followed. In the

above said judgment, it was also noticed that the grounds for regular bail

stand on a better footing than that of suspension of sentence which is after

conviction. It is apparent that to meet the requirement of Section 37 of the

NDPS Act, various Courts have taken into consideration the merits of the

case and the period of custody and where in a case there are arguable points

on merits and the custody is also adequate, the Hon'ble Supreme as well as

various High Courts have granted bail even in cases involving commercial

quantity. This Court feels that in the present case, there are several

arguable points which have been raised by the learned counsel for the

petitioner and the petitioner has been in custody for 01 year 06 months and

07 days and the same is sufficient to entitle the petitioner for grant of

regular bail. Moreover, this Court proposes to impose such conditions that

would meet the object of Section 37 of the NDPS Act.

Accordingly, the present petition is allowed and the petitioner

is directed to be released on regular bail on his furnishing bail/surety bonds

to the satisfaction of the trial Court / Duty Magistrate, subject to his not

being required in any other case. The petitioner shall also abide by the

following conditions:-

1. The petitioner will not tamper with the evidence during the trial.

2. The petitioner will not pressurize / intimidate the prosecution

witness(s).

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3. The petitioner will appear before the trial Court on the date fixed,

unless personal presence is exempted.

4. The petitioner shall not commit an offence similar to the offence

of which he is accused, or for commission of which he is suspected.

5. The petitioner shall not directly or indirectly make any

inducement, threat or promise to any person acquainted with the facts

of the case so as to dissuade him from disclosing such facts to the

Court or to any police officer or tamper with the evidence.

In case of breach of any of the above conditions, the

prosecution shall be at liberty to move an application for cancellation of

bail before this Court.

However, nothing stated above shall be construed as a final

expression of opinion on the merits of the case and the trial Court would

proceed independently of the observations made in the present case which

are only for the purpose of adjudicating the present bail application.

(VIKAS BAHL) JUDGE October 05, 2021.

sandeep
Whether speaking/reasoned:-                                         Yes/No
Whether Reportable:-                                                Yes/No




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