Buta Singh @ Boota Singh vs State Of Punjab
2022 Latest Caselaw 9693 P&H

CRM-M-32947-2022                                                        1

      IN THE HIGH COURT OF PUNJAB & HARYANA AT
                   CHANDIGARH
                      ***

CRM-M-32947-2022 Date of decision : 25.08.2022

Buta singh @ Boota Singh

... Petitioner

Versus

State of Punjab

... Respondent

CORAM: HON'BLE MR.JUSTICE VIKAS BAHL

Present: Mr.Ranbir Singh Sekhon, Advocate for the petitioner.

Mr.M.S.Bajwa, DAG, Punjab.

VIKAS BAHL, J.(ORAL)

This is a petition under Section 439 Cr.P.C. for grant of regular

bail to the petitioner in FIR no.22 dated 19.03.2020 registered under

Sections 21/61/85 of the Narcotic Drugs and Psychotropic Substances, Act,

1985 (in short "NDPS Act") at Police Station Mamdot, District Ferozepur.

Learned counsel for the petitioner has submitted that the

petitioner has been in custody since 19.03.2020 and the challan has already

been presented and there are 10 witnesses and out of which, 6 witnesses are

yet to be examined and thus, the trial is likely to take time and the petitioner

is not involved in any other case. Learned counsel for the petitioner has

relied upon various orders of the Hon'ble Supreme Court, wherein, solely on

the basis of the custody, the concession of bail has been granted. Reliance

has also been placed upon an order of Division Bench of this Court in

CRM-3773-2019 in CRA-D-198-DB-2017 titled as "Bhupender Singh vs

Narcotic Control Bureau" to contend that keeping the petitioner in further 1 of 7

incarceration would be violative of the right of the petitioner enshrined

under Article 21 of the Constitution of India and in the said orders, the

accused have been released solely on the basis of length of custody period.

Learned State counsel, on the other hand, has opposed the

present petition for regular bail and has submitted that the quantity involved

in the present case is of commercial quantity, thus, the bar under Section 37

of the NDPS Act applies.

This Court has heard learned counsel for the parties and has

perused the paper book.

The Hon'ble Supreme Court in the order dated 22.08.2022

passed in Special Leave to Appeal (Crl.) No.5530-2022 titled as

"Mohammad Salman Hanif Shaikh Vs. The State of Gujarat was pleased

to observe as under: -

"We are inclined to release the petitioner on bail only on the ground that he has spent about two years in custody and conclusion 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 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 in the above terms.

Pending application(s), if any, shall also stand disposed of."

The above-said case was also a case under the NDPS Act and

the FIR had been registered under Sections 8(c), 21(c) and 29 of the said

Act. The case of the prosecution was that the recovery effected from the

said petitioner (therein) was of commercial quantity. The Hon'ble Supreme

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Court had observed that the concession of bail was granted to the petitioner

(therein) only on the ground that he had spent about two years in custody

and the conclusion of trial will take some time.

The Hon'ble Supreme Court in Criminal Appeal No.245/2020

titled as "Chitta Biswas Alias Subhas Vs. The State of West Bengal", vide

order dated 07.02.2020, was pleased to grant the concession of bail to the

petitioner (therein) in a case where the custody was 1 year and 7 months

approximately. The relevant of the said order dated 07.02.2020 is

reproduced as under: -

"Leave granted.

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 Section 21-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 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 opinion 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 3 of 7

participation of the appellant in the pending trial. With the aforesaid directions, the appeal stands allowed."

In another case i.e., Criminal Appeal No.1169 of 2022 titled as

"Gopal Krishna Patra @ Gopalrusma Vs. Union of India,", vide order

dated 05.08.2022, the Hon'ble Supreme 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, 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-AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The application 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 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 benefit granted by this Order.

The appeal is allowed in aforesaid terms."

A perusal of the above-said order would show that in the said

case, the custody was of approximately 2 years, 1 month and 17 days and

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the case was under the NDPS Act and relying primarily on the length of

custody period bail was granted to the petitioner (therein).

The Hon'ble Supreme Court of India in Special Leave to

Appeal (Crl.) No.5769/2022 titled as "Nitish Adhikary @ Bapan Vs. The

State of West Bengal", vide order dated 01.08.2022, was pleased to observe

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, registered at Police Station Bongaon, West Bengal.

During the 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 is 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."

A perusal of the said order would also show that the said case

was under the NDPS Act and the provisions of Section 37 of the NDPS Act

were also mentioned in the same and the bail was granted primarily by

considering the petitioner (therein) had undergone custody for a period of 5 of 7

01 year and 07 months and only one witness had been examined and that the

petitioner (therein) did not have any criminal antecedents.

The Division Bench of this Court in Bhupender Singh's case

(supra), vide a detailed judgment dated 12.01.2022, had held that in case,

the accused person is able to make out a case within the parameters of

Article 21 of the Constitution of India, in view of the length of the custody

period then he deserves the concession of regular bail, even in the face of

rigors of Section 37 of the NDPS Act.

In the present case, the petitioner has been in custody since

19.03.2020 (2 years 5 months and 4 days) and the challan has already been

presented and out of 10 witnesses, 6 witnesses are yet to be examined and

thus, the trial is likely to take time and the petitioner is stated to be not

involved in any other case and keeping the petitioner in further

incarceration would be violative of the right of the petitioner enshrined

under Article 21 of the Constitution of India

Keeping in view the above said facts and circumstances as

well as the law laid down in the above-said judgments, the present petition

is allowed and the petitioner is ordered to be released on bail on his

furnishing bail / surety bonds to the satisfaction of the concerned trial

Court/ Duty Magistrate and subject to him 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).

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

unless personal presence is exempted.

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

of which he is accused of, 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.

Nothing stated above shall be construed as a final expression of

opinion on the merits of the case and the trial would proceed independently

of the observations made in the present case which are only for the purpose

of adjudicating the present bail petition.

                                                    (VIKAS BAHL)
                                                       JUDGE
August 25, 2022
Davinder Kumar

                 Whether speaking / reasoned                          Yes/No
                 Whether reportable                                   Yes/No




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