Sunny Vehmi vs State Of Punjab
2022 Latest Caselaw 15408 P&H

CRM-M-54786-2022                                                         -1-

221
       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                                 CRM-M-54786-2022
                                                 Date of decision : 01.12.2022

Sunny Vehmi

                                                                     ...Petitioner

                                        Versus

State of Punjab

                                                                   ...Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:     Mr. Vipan Kumar Sharma, Advocate for the petitioner.

             Mr. Ramdeep Partap Singh, Sr. DAG, Punjab.

             ****

VIKAS BAHL, J. (ORAL)

This is the fourth petition filed under Section 439 of Cr.P.C. for

grant of regular bail to the petitioner in FIR No.38 dated 22.03.2019

registered under Sections 21, 22 and 25 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 and Section 25 of the Arms Act, 1959 at

Police Station Jalandhar Cantt, Jalandhar, District Jalandhar.

Learned counsel for the petitioner has submitted that the

petitioner is in custody since 22.03.2019 (more than 3 years and 8 months),

investigation is complete, challan has been presented and there are 14

prosecution witnesses, out of which, only one witness has been examined

till date and thus, the conclusion of trial is likely to take time. It is further

submitted that the last bail application of the petitioner was dismissed as

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withdrawn on 04.08.2022 at that stage and it was observed in that order that

the trial Court be directed to expedite the trial and that even after passing of

the said order, no witness has been examined and reference has been made

to the zimni orders dated 31.08.2022 (Annexure P-4) and 14.10.2022

(Annexure P-5) in order to show that although, bailable warrants have been

issued against the prosecution witnesses yet they have not appeared and

thus, keeping the petitioner in further incarceration would be violative of the

right of the petitioner enshrined under Article 21 of the Constitution of

India.

Learned counsel for the petitioner has relied upon an order

dated 12.01.2022 passed by the Division Bench of this Court in CRM-

3773-2019 in CRA-D-198-DB-2017 titled as Bhupender Singh Vs.

Narcotic Control Bureau, order dated 22.08.2022 passed by the Hon'ble

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

"Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, order dated

07.02.2020 passed by the Hon'ble Supreme Court in Criminal Appeal

No.245/2020 titled as "Chitta Biswas Alias Subhas Vs. The State of West

Bengal", order dated 05.08.2022 passed by the Hon'ble Supreme Court in

Criminal Appeal No.1169 of 2022 titled as "Gopal Krishna Patra @

Gopalrusma Vs. Union of India,", order dated 01.08.2022 passed by the

Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.5769/2022

titled as "Nitish Adhikary @ Bapan Vs. The State of West Bengal", in

support of his arguments that on the basis of long custody alone, the

petitioner deserves the concession of regular bail.

On the other hand, learned State Counsel has opposed the

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present petition for grant of regular bail to the petitioner and has submitted

that the recovery effected from the petitioner is of commercial quantity and

thus, bar under Section 37 of the NDPS Act would apply. It is further

submitted that the petitioner is involved in other cases also and that the

recovery of live cartridges have also been effected from the present

petitioner.

Learned counsel for the petitioner, in rebuttal to the abovesaid

arguments, has relied upon the judgment of Hon'ble Supreme Court in

"Maulana Mohd. Amir Rashadi vs. State of U.P. and another", reported

as 2012 (2) SCC 382 to contend that the facts and circumstances of the

present case are to be seen and the bail application of the petitioner cannot

be rejected solely on the ground that the petitioner is involved in another

case. The relevant portion of the said judgment is reproduced hereinbelow:-

"As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."

This Court has heard the learned counsel for the parties and has

perused the paper book.

The Hon'ble Supreme Court in Mohammad Salman Hanif

Shaikh's case (Supra), had held 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.

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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, 1985

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

said Act. The case of the prosecution therein was that the recovery from the

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

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.

Hon'ble Supreme Court in Chitta Biswas Alias Subhas's case

(Supra) 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.

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.

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

In Gopal Krishna Patra @ Gopalrusma's case (Supra), 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

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

and the case was under the NDPS Act, 1985 and primarily, considering the

length of the custody period, concession of bail was granted to the petitioner

(therein).

The Hon'ble Supreme Court of India in Nitish Adhikary @

Bapan's case (Supra) 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.

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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, 1985 and the provision of Section 37 of the NDPS

Act, 1985 were also mentioned in the same and the bail was granted

primarily by considering the petitioner (therein) had undergone custody for

a period of 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), had also 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 custody period, then he deserves the concession of regular bail, even

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in the face of rigors of Section 37 of the NDPS Act, 1985.

In the present case, the petitioner is in custody since 22.03.2019

(more than 3 years and 8 months), investigation is complete, challan has

been presented and out of 14 prosecution witnesses, only one witness has

been examined till date and thus, the conclusion of trial is likely to take

time. The last bail application of the petitioner was dismissed as withdrawn

on 04.08.2022 at that stage and the direction was given to the trial Court to

expedite the trial and even after passing of the said order, no witness has

been examined and a perusal of zimni orders dated 31.08.2022 (Annexure

P-4) and 14.10.2022 (Annexure P-5) would show that in spite of issuance of

bailable warrants, prosecution witnesses have not appeared and thus, further

incarceration of the petitioner would be violative of the right of the

petitioner enshrined under Article 21 of the Constitution of India.

Keeping in view the abovesaid facts and circumstances as also

the law laid down in the abovecited judgments, this Court deems it

appropriate to grant the concession of regular bail to the petitioner. Further,

this Court proposes to impose such conditions that would meet the object of

Section 37 of the NDPS Act, 1985.

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 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.

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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.

4. The petitioner shall not commit an offence similar to the offence of which he is an 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/her 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 an

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 application.

All the pending miscellaneous applications, if any, stand

disposed of in view of the abovesaid judgment.

01.12.2022                                            (VIKAS BAHL)
Pawan                                                    JUDGE


             Whether speaking/reasoned:-              Yes/No

             Whether reportable:-                     Yes/No




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