Punjab-Haryana High Court
Sumit Khatri vs State Of Punjab on 1 December, 2022
CRM-M-43867 of 2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
225 CRM-M-43867 of 2022
Date of Decision:01.12.2022
Sumit Khatri
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Dr. Anmol Rattan Sidhu, Senior Advocate, with
Mr. Sukhcharan Singh Gill, Advocate,
for the petitioner.
Mr. Kunal Vinayak, AAG, Punjab.
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JASGURPREET SINGH PURI, J. (Oral)
The present is the second petition filed under Section 439 of the Code
of Criminal Procedure for the grant of regular bail to the petitioner in FIR No.149
dated 03.10.2020, under Sections 21/61/85 of the NDPS Act, registered at Police
Station Maqsudan, District Jalanhdar Rural.
The learned senior counsel appearing on behalf of the petitioner has
submitted that it is a case where the petitioner is in custody from 03.10.2020,
which is more than 2 years, 1 month and 24 days. He submitted that the petitioner
is not a habitual offender and is not involved in any other case under the NDPS
Act. However, in one case under the provisions of Section 279 IPC stands
registered against the present petitioner in the year 2014. He submitted that as per
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the FIR, the petitioner alongwith the co-accused namely Parveen Rajput were
apprehended alongwith 500 grams of heroin. He submitted that the entire
prosecution story was false and the petitioner was falsely implicated in the present
case and in fact he was going to Jammu & Kashmir alongwith his friends but a
false case was planted upon him. The learned senior counsel further substantiated
his arguments by submitting that the charges in the present case were framed
28.09.2021, which is almost one year and two months but till date only one
prosecution witness has been examined who was mere formal witness who had
only collected the sample from the police Malkhana and sent to the Forensic
Science Laboratory, whereas there was a team of 5-6 police personnel including
Sub-Inspector, Assistant Sub-Inspector, Head Constable and other officials, who as
per the FIR constituted the police party but none of them have stepped into the
wintess box and deposed despite the fact that more than one year has lapsed after
the framing of the charges. He further submitted that 18 adjournments were made
by the learned trial Court and the learned senior counsel had attached some of the
zimni orders alongwith the present petition and submitted that repeatedly the
prosecution witnesses were summoned and on various occasions the learned
Special Judge had directed that the prosecution witness be summoned through the
SSP and still they did not appear and deposed with the result that the trial has been
delayed at the hands of the prosecution itself for no fault of the petitioner. He
submitted that there is no jusitification coming foward as to why the police party
who allegedly apprehended the petitioner as per the prosecution story, has chosen
not to step into the witness box for more than 1 year and 2 months despite 18
adjournments and repeated summons sent to them which goes to show that on the
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face of it the petitioner has been falsely implicated in the present case. Learned
counsel has also relied upon a recent judgment of the Hon'ble Supreme Court in
Satender Kumar Antil v. Central Bureau of Investigation and another 2022
AIR (SC) 3386 and contended that right of speedy trial is the fundamental right
under Article 21 of the Constitution of Inda and there should not be any repeated
adjournments without any justification, whereas, in the present case without any
justification, 18 adjournment were granted and only one witness who was
examined was a formal witness. He submitted that since it was a case of false
implication due to the aforesaid reason, the bar contained under Section 37 of the
NDPS Act will not apply in the present case.
On the other hand, Mr. Kunal Vinayak, learned AAG, Punjab has
stated that it is correct that the petitioner has faced incarceration for about 2 years,
1 month and 24 days and the charges were framed on 28.09.2021 but thereafter
about 18 adjournment were granted by the learned Special Court, no prosecution
witness has been examined except one formal witness, who was only a person who
had collected the sample from the police Malkhana and sent it to the FSL. He
submitted that it is correct that none of the official witnesses who were called as a
police party etc. have been examined till date. A specific query being raised to the
learned counsel for the State by this Court during the course of arguments as to
what is the justification as to why more than one year after the framing of the
charges the police party who had rather put the criminal law into motion failed to
appear before the Court and depose for 18 dates, he sought instructions from ASI
Rajinder Kumar who is present in Court and has stated that no justification is
coming forth in this regard. He also submitted that it is correct that the petitioner is
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not involved in any other case under the NDPS Act but there is one case under
Section 279 IPC pertaining to the year 2014..
I have heard the learned counsel for the parties.
It is a case where allegedly the petitioner alongwith other co-accused
were caught with 500 grams of heroin which falls under the category of
commercial quantity under the NDPS Act. Therefore, this Court would consider
the effect of Section 37 of the NDPS Act in the present case. The learned senior
counsel has apprised this Court and also referred to the orders which were passed
by the learned Special Court in which it can be seen that the charges were framed
on 28.09.2021 and thereafter about 18 adjournments were granted but no
prosecution witness has been examined except one formal witness. A perusal of
the zimni orders would show that for a number of times Judge, Special Court
directed that the prosecution witnesses who are the official witnesses in the present
case be summoned through the SSP. Despite the fact that such orders were passed,
till date, nobody has come forward for deposition. No justification has come
forward from the State counsel as to what prevented them for deposing in Court
and with the result that 18 adjournments were granted by the learned Special
Court. The arguments raised by the learned senior counsel that the delay has been
caused by the prosecution and not by the petitioner which has resulted in his
incarceration for about 2 years, 1 month and 24 days without his fault and on this
ground he deserves the concession of regular bail carries weight. So far as the
arguments raised by the learned senior counsel that he has been falsely implicated
in the present case, this Court is of the view that the same get substantiated from
the fact that for 18 times no prosecution witness came forward for deposition and
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therefore in view of the aforesaid facts and circumstances, this Court is of the
prima facie view that there are reasons to believe at least at this stage that the
petitioner is not guilty of the offence. Apart from the same, so far as the second
ingredient for making a departure from the bar contained under Section 37 of the
NDPS Act is concerned, the petitioner is stated to be not involved in any other case
under the NDPS Act nor it has been argued by the learned State counsel that in
case the petitioner is released on bail, then he may repeat the offence or may
abscond from justice. Therefore, both the conditions for making a departure from
the bar contained under Section 37 of the NDPS Act remain satisfied.
In view of the aforesaid position and also considering the long
custody of the petitioner which is more than 2 years, this Court deems it fit and
proper to grant the regular bail to the petitioner. Consequently, the present petition
is allowed. The petitioner shall be released on regular bail subject to furnishing
bail bonds/surety to the satisfaction of the learned trial Court/Duty Magistrate
concerned.
However, anything observed hereinabove shall not be treated as an
expresion of opinion on merits of the case and is only meant for the purpose of
decision of present petition.
(JASGURPREET SINGH PURI)
JUDGE
December 01, 2022
dinesh
Whether speaking : Yes/No
Whether reportable : Yes/No
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