Balvinder Kumar vs State Of Haryana
2022 Latest Caselaw 17523 P&H

CRM-M-19045-2021                                             -1-

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      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                                 CRM-M-19045-2021
                                                 Date of decision : 22.12.2022

Balvinder Kumar

                                                                     ...Petitioner

                                        Versus

State of Haryana

                                                                   ...Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:    Mr. P.S. Sekhon, Advocate for the petitioner.

            Mr. Vishal Malik, DAG, Haryana.

            ****

VIKAS BAHL, J. (ORAL)

Prayer in the present petition is for grant of regular bail to the

petitioner in FIR No.468 dated 21.12.2020 registered under Sections 17 and

18 of the NDPS Act, 1985 at Police Station Jind Sadar, District Jind.

Learned counsel for the petitioner has submitted that the

petitioner is in custody since 21.12.2020 (more than two years) and

investigation is complete and challan has been presented and there are 18

prosecution witnesses, out of which, two witnesses have been given up and

none have been examined as yet and thus, the conclusion of trial is likely to

take time. It is further submitted that the petitioner is not involved in any

other case. It is contended that in view of custody of the petitioner, he

deserves the concession of regular bail, as any further incarceration would

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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

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

the custody, the 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 in case titled as "Bhupender Singh Vs. Narcotic Control

Bureau".

Learned State counsel has opposed the present petition for

regular bail, but has not disputed the above-said facts, although, has

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

is further submitted that out of 18 prosecution witnesses, although, two

witnesses have been given up but has not denied the fact that none of the

witnesses have been examined.

This Court has heard learned counsel for the parties and has

gone through the paper-book.

The Hon'ble Supreme Court in case titled as "Mohammad

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

22.08.2022 passed in Special Leave to Appeal (Crl.) No.5530-2022 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

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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 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 being 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 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 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 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

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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 and primarily, considering the

longevity of the custody period, concession of 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

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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 provision 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

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 CRM-3773-2019 in CRA-

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D-198-DB-2017, vide a detailed judgment dated 12.01.2022, 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 on the basis of period

of custody, 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 is in custody since 21.12.2020

(more than two years) and investigation is complete and challan has been

presented and out of 18 prosecution witnesses, two witnesses have been

given up and none have been examined as yet and thus, the conclusion of

trial is likely to take time. The petitioner is not involved in any other case

and keeping the petitioner in further incarceration would be violative of his

right 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 directed to be released on regular 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.

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.

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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.

However, nothing stated above shall be construed as a final

expression of opinion on the merits of the case and the trial Court would

proceed independently of the observations made in the present case which

are only for the purpose of adjudicating the present bail petition.

Pending miscellaneous application, if any, stands disposed of in

view of the abovesaid order.

22.12.2022                                            (VIKAS BAHL)
Pawan                                                    JUDGE


              Whether speaking/reasoned:-             Yes/No

              Whether reportable:-                    Yes/No




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