Arun Kumar vs State Of Punjab
2022 Latest Caselaw 8564 P&H

CRM-M-20341-2022                                                                -1-

210
        IN THE HIGH COURT OF PUNJAB & HARYANA
                     AT CHANDIGARH
                                     ****
                                               CRM-M-20341-2022
                                               Date of Decision: 05.08.2022

Arun Kumar                                                         ..... Petitioner

                                    Versus
State of Punjab                                                  ..... Respondent

CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:    Mr. Amandeep Singh Saini, Advocate,
            for the petitioner.

            Mr. R.S. Thind, DAG, Punjab.

                          ****

JASGURPREET SINGH PURI, J. (ORAL)

This is the second petition filed under Section 439 of the Code

of Criminal Procedure for grant of regular bail to the petitioner in case

bearing FIR No.105 dated 14.08.2021, under Sections 22/61/85 of the

NDPS Act, registered at Police Station Shambu, District Patiala.

It has been submitted by learned counsel for the petitioner that

the petitioner had earlier filed a petition for grant of regular bail in CRM-M-

50503-2021, which was dismissed by this Court on 07.02.2022, since, at

that point of time, the charges were framed only three days ago i.e. on

04.02.2022. He further submitted that there are now two change of

circumstances. Firstly, more than six months have elapsed after the framing

of the charges on 04.02.2022 but no prosecution witness has been

examined. He also submitted that it is a case where the matter pertains to the

NDPS Act and the witnesses are official witnesses, who have themselves

1 of 4

put the criminal law into motion by registering the FIR against the petitioner

and it was because of the delay on their part that the petitioner had to face

incarceration for another six months. Secondly, after the passing of the

earlier order, another co-accused, who was also allegedly on the motorcycle,

has been granted bail by this Court vide Annexure P-4 on 25.04.2022 and

the petitioner is at parity with the aforesaid co-accused. He also submitted

that a report was sought from the State to verify as to what was the status of

the petitioner pertaining to him being HIV positive.

A reply by way of a short affidavit of Additional

Superintendent Central Jail, Patiala has been filed by the learned State

counsel, wherein a report of the Medical Officer, Central Jail, Patiala has

also been attached, which shows that the petitioner is an HIV patient and in

the affidavit, it is also stated that the Jail Authorities are taking good care of

him and providing all medical facilities to him.

Learned counsel for the petitioner has further submitted that as

per the allegations in the present FIR, there was a recovery of 75 injections

of Buprenorphine and 75 injections of Pheniramine maleate (Avil) from

two persons including the petitioner. So far as the injections of Pheniramine

maleate (Avil) is concerned, the same does not fall within the scope and

ambit of NDPS Act and so far as the injections of Buprenorphine is

concerned, the same are less than 100 doses and in view of the provisions of

Rule 66 of the NDPS Rules, 1981 in case the injections are required for

medical purposes then the same can be possessed without any medical

prescription. He also submitted that the petitioner is suffering from

AIDS/HIV infection and the injections of Buprenorphone are used for

2 of 4

relieving the pain and even for treatment and his case is, therefore, covered

within the parameters of aforesaid Rule. He also relied upon the judgment

of "Sukhwinder Singh @ Vicky Vs. State of Punjab" 2021(1) RCR

(Criminal) 177, in this regard and has submitted that considering the total

incarceration of 10 months and 20 days of the petitioner, he may be

considered for the grant of regular bail.

On the other hand, Mr. R.S. Thind, learned DAG, Punjab has

stated that it is correct that the petitioner is in custody for 10 months and 20

days and the charges were framed on 04.02.2022 but no witness has been

examined till date. On a query being asked to learned State counsel as to

why for six months, no witness has been examined, he was unable to answer

the query raised by the Court. So far as the parity of the petitioner with the

other co-accused, namely, Mandeep Singh is concerned, he has stated that

although the petitioner is at parity with the aforesaid Mandeep Singh, but

the difference was that the petitioner was earlier involved in one more case

under the NDPS Act, in which, he has already undergone.

However, learned counsel for the petitioner at this stage had

stated that in that case there was an alleged recovery of only 10 ml. of

Codeine only and that was also used for medical purposes, since the

petitioner is suffering from AIDS/HIV infection.

I have heard the learned counsel for the parties.

As per the affidavit filed by the State, the petitioner is a patient

of AIDS/HIV. The recovery from the petitioner and the other co-accused

was collectively of 75 injections of Buprenorphine and the case of the

petitioner is that such kind of injections are helpful in relieving the pain

3 of 4

when a patient is suffering from HIV/AIDS. The charges in the present case

were framed on 04.02.2022 and no explanation has come forward from the

learned State counsel as to why there was a delay on the part of prosecution

that no witness has been examined till date. Therefore, the successive bail

petition filed by the petitioner would certainly be maintainable. So far as the

applicability of Section 37 of the NDPS Act is concerned, although the

recovered quantity from two accused was 75 injections/doses of

Buprenorphine but in view of the facts and circumstances, the case of the

petitioner is covered by the judgment of this Court in Sukhwinder Singh's

case (Supra), since it has been verified by the State that the petitioner is

suffering from AIDS/HIV infection, and therefore, the provisions of bar

contained under Section 37 of the NDPS Act will not apply in the present

case. Furthermore, it is not the case of the State that in case the petitioner is

released on bail then he may abscond or flee from justice or may influence

any witness, therefore, considering the aforesaid facts and circumstances of

the case, this Court deems it fit and proper to grant bail to the petitioner.

Consequently, the present petition is allowed and the petitioner

is ordered to be released on bail on furnishing bail bond/surety bond to the

satisfaction of the trial Court/Duty Magistrate concerned, if not required in

any other case.

However, anything observed hereinabove shall not be treated as

an expression of opinion on merits of the case and is only meant for the

purpose of decision of present petition.

05.08.2022                        (JASGURPREET SINGH PURI)
Bhumika                                     JUDGE
             1. Whether speaking/reasoned:      Yes
             2. Whether reportable:             Yes/No



                                       4 of 4