Sunil vs State Of Haryana
2022 Latest Caselaw 17031 P&H

CRM-M-24681-2021                                                      1

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

Date of decision : 16.12.2022

1. CRM-M-24681-2021

Sunil ... Petitioner

Versus

State of Haryana ... Respondent

2. CRM-M-30915-2021

Parveen ... Petitioner

Versus

State of Haryana ... Respondent

CORAM: HON'BLE MR.JUSTICE VIKAS BAHL

Present: Mr.Arav Gupta, Advocate for the petitioner in CRM-M-24681-2021.

Mr.Ajay Kripal Singh, Advocate for the petitioner in CRM-M-30915-2021.

Mr. Vishal Malik, DAG, Haryana.

VIKAS BAHL, J.(ORAL)

This order will dispose of two petitions filed under Section 439

Cr.P.C. for grant of regular bail to the petitioners in FIR no.488 dated

02.12.2020 registered under Sections 20, 29, 61 of the Narcotic Drugs and

Psychotropic Substances Act 1985 (in short "NDPS Act") at Police Station

Hodal, District Palwal, Haryana.

The first petition, i.e. CRM-M-24681-2021 has been filed by

Sunil and the second petition, i.e. CRM-M-30915-2021 has been filed by

Parveen.

1 of 8

Learned counsel for both the petitioners have jointly submitted

that the petitioners have been in custody since 02.12.2020 and the

investigation is complete and the challan has already been presented and

there are 13 witnesses out of which only 1 witness has been examined and

thus, the trial is likely to take time. It is further submitted that the petitioners

are not involved in any other case. It is contended that further incarceration

of the petitioners would be violative of the right of the petitioners enshrined

under Article 21 of the Constitution of India. Learned counsel for the

petitioners 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 their arguments that on the basis of

long custody alone, the petitioners deserve the concession of regular bail.

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

present petitions for grant of regular bail to the petitioners and has

submitted that the recovery in the present case is of commercial quantity

and thus, the bar under Section 37 of the NDPS Act would apply.

2 of 8

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.

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 3 of 8

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 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, 4 of 8

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 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

5 of 8

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, 1985 and the provisions of Section 37 of the

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

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

for a period of 01 year and 07 months and only one witness had been

examined.

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 6 of 8

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, 1985.

In the present case, the petitioners have been in custody since

02.12.2020 (more than 2 years) and the investigation is complete and the

challan has already been presented and there are 13 witnesses out of which

only 1 witness has been examined and thus, the trial is likely to take time

and the petitioners are stated to be not involved in any other case under the

NDPS Act and further incarceration of the petitioners would be violative of

the right of the petitioners 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 petitioners. Further,

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

Section 37 of the NDPS Act, 1985.

Accordingly, both the present petitions are allowed and the

petitioners are ordered to be released on regular bail on their furnishing

bail/surety bonds to the satisfaction of the trial Court/Duty Magistrate,

subject to them not being required in any other case. The petitioners shall

also abide by the following conditions:-

1. The petitioners will not tamper with the evidence during

the trial.

2. The petitioners will not pressurize/intimidate the

prosecution witness(s).

3. The petitioners will appear before the trial Court on the

date fixed, unless personal presence is exempted.

7 of 8

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

offence of which they are an accused, or for commission

of which they are suspected.

5. The petitioners 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.

                                                    (VIKAS BAHL)
                                                       JUDGE
December 16, 2022
Davinder Kumar

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




                                    8 of 8