Sumit Kumar vs State Of Punjab
2022 Latest Caselaw 6315 P&H

CRM-M-25079-2022(O&M)                                                       1

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

CRM-M-25079-2022(O&M) Date of decision : 07.07.2022

Sumit Kumar

... Petitioner

Versus

State of Punjab

... Respondent

CORAM: HON'BLE MR.JUSTICE VIKAS BAHL

Present: Mr. Chandan Singh Rana, Advocate for the petitioner.

Mr. Sarabjit Singh Cheema, AAG, Punjab.

VIKAS BAHL, J.(ORAL)

The present petition has been filed under Section 439 Cr.P.C.

for grant of regular bail to the petitioner in case FIR No. 73 dated

19.06.2020 registered under Sections 21 and 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 at Police Station STF Phase-4, District

SAS Nagar.

Learned counsel for the petitioner has submitted that in the

present case, it is not specifically stated in the FIR as to from whom the

recovery of 615 gms. of heroin has been effected. It is further submitted that

the petitioner has been in custody since 19.06.2020 and the challan has

already been presented and there are as many as 15 witnesses, none of

whom have been examined as yet and thus, the trial is likely to take time. It

is also submitted that in the present case, there is non compliance of Section

42 of the NDPS Act inasmuch as, the secret information had been taken

down by ASI Jaipal Singh whereas the same has been sent by Naresh

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Kumar and not by ASI Jaipal Singh. A reference has been made to Section

42 (2) to contend that the phrase "he shall within 72 hours send a copy

thereof to the immediate official superior" would indicate that it is the

person who had taken down the writing who ought to send the information

taken down to the senior officer and thus, there is noncompliance of Section

42 in the present case. It is further submitted that the petitioner is not

involved in any other case. It is further submitted that the co-accused Raj

Kumar @ Raju has also been granted the concession of regular bail by this

Court vide order dated 23.05.2022 and the case of the petitioner is on a

similar footing as that of the co-accused.

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

present application for regular bail and has submitted that in the present

case, there is complete compliance of Section 42 of the NDPS Act inasmuch

as, ASI Jaipal Singh had taken down the information and then forwarded the

same to Naresh Kumar, who was also working in Special Task Force,

Ludhiana and sent it to the higher officer and thus, the intent of Section 42

has been complied with. It is further submitted that the said Naresh Kumar

is the Investigating Officer in the present case.

This Court has heard learned counsel for the parties and has

perused the paperbook.

The petitioner has been in custody since 19.06.2020 (more than

2 years) and the challan in the present case has been presented and there are

as many as 15 prosecution witnesses out of whom, none have been

examined yet and thus, the trial is like to take a time. The petitioner is not

stated to be the owner of the motorcycle and is also stated to be not

involved in any other case. Moreover, the question as to whether Section 42

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of the NDPS Act has been complied with or not in the present case would

be a matter of debate, which would be finally adjudicated during the course

of trial. The co-accused of the petitioner Raj Kumar @ Raju has been

granted regular bail by this Court vide order dated 23.05.2022 passed in

CRM-M-31715-2022 and the case of the petitioner is on a similar footing as

that of the said co-accused.

A co-ordinate Bench of this Court in a detailed judgment titled

as Ankush Kumar @ Sonu v. State of Punjab reported as 2018 (4) RCR

(Criminal) 84, had considered the provision of Section 37 of the NDPS Act

in extenso and had granted bail in a case which involved commercial

quantity. The relevant portion of the said judgment is reproduced as under:

" xxx--xxx--xxx But, so far as second part of Section 37 (1) (b) (ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit 'any offence' after coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit 'any offence' or 'offence under NDPS Act' after being released on bail, then this court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, this satisfaction of the Court in this regard is neutral qua future possible conduct of the petitioner."

The Special Leave Petition (Criminal) Diary No.42609 of 2018

filed against the aforesaid judgment of the Co-ordinate Bench of this Court,

was dismissed by the Hon'ble Supreme Court.

Further, vide order dated 25.02.2021 in CRM-M-20177-2020, a

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Co-ordinate Bench of this Court granted regular bail to an accused who was

involved in a case wherein recovery was of 3.8 kgs of "charas" (commercial

quantity) after being in custody for 1 year and 7 months. The said order was

upheld by the Hon'ble Supreme Court vide order dated 24.08.2021 in a

Petition for Special Leave to Appeal (Crl.) No.5852/2021 titled as

"Narcotic Control Bureau v. Vipan Sood and another".

The Hon'ble Supreme Court of India vide order dated

12.10.2020 passed in Criminal Appeal No.668 of 2020 titled as "Amit

Singh @ Moni v. Himachal Pradesh" was pleased to grant regular bail in a

case involving 3 kg and 800 grams of "charas" primarily on the ground of

substantial custody and also, the fact that the trial would likely take time to

conclude.

In Criminal Appeal No.827 of 2021 titled as Mukarram

Hussain v. State of Rajasthan and another , the Hon'ble Apex Court vide

judgment dated 16.8.2021 was also pleased to grant bail wherein the

quantity of the contraband was commercial in nature.

A Co-ordinate Bench of this Court in CRM-M 10343 of 2021

titled as Ajay Kumar @ Nannu v. State of Punjab and other connected

matters, vide Order dated 31.03.2021, after taking into consideration the

stipulations of Section 37 of the NDPS Act, was pleased to grant regular

bail in a case involving commercial quantity and a condition was imposed

on the petitioner therein while granting the said bail and the said condition

was incorporated in para 21 of the said judgment, which reads as under:

"21. However, the petitioners are granted regular bail subject to the condition that they shall not commit any offence under the NDPS Act after their release on bail and in case of commission of any such offence by them after their release on bail, their bail in the present case shall also be liable to be cancelled on application

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to be filed by the prosecution in this regard."

Further, a Division Bench of this Court vide judgment dated

31.08.2021 passed in CRM-8262-2021 in CRA-S-3721-SB of 2015 titled as

"Harpal Singh vs. National Investigating Agency and another", granted

suspension of sentence in a case where the recovery was of commercial

quantity. In the above mentioned order, the Division Bench had taken into

consideration the right vested with an accused person/convict under Article

21 of the Constitution of India with regard to speedy trial. Further, the

judgment of Hon'ble the Supreme Court in State (NCT of Delhi) v. Lokesh

Chadha reported as (2021) 5 SCC 724 was also taken into account and the

provisions of Section 37 of NDPS Act were considered and the sentence of

the applicant-appellant therein was suspended after primarily considering

the period of custody of the pplicant-appellant therein and also the fact that

the appeal was not likely to be heard in near future. Reference in the order

was also made to the Division Bench judgment of this Court in Daler Singh

v. State of Punjab reported as 2007 (1) R.C.R. (Criminal) 316 and the view

taken in Daler Singh's case (supra) was reiterated and followed. In the

above said judgment, it was also noticed that the grounds for regular bail

stand on a better footing than that of suspension of sentence which is after

conviction. It is apparent that to meet the requirement of Section 37 of the

NDPS Act, various Courts have taken into consideration the merits of the

case and the period of custody and where, in a case there are arguable points

on merits and the custody is also adequate, the Hon'ble Supreme as well as

various High Courts have granted bail even in cases involving commercial

quantity. This Court is of the opinion that in the present case, there are

several arguable points which have been raised by the learned counsel for

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the petitioner and the petitioner has been in custody since 19.06.2020, all

the abovesaid factors are sufficient to entitle the petitioner for the

concession of regular bail. Moreover, this Court proposes to impose such

conditions that would meet the object of Section 37 of the NDPS Act.

Keeping in view the above said facts and circumstances,

moreso the custody period of petitioner and the fact that he is not involved

in any other case and also the fact that there are arguable points in the

present case, 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.

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.

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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 would proceed

independently of the observations made in the present case which are only

for the purpose of adjudicating the present bail application.

Pending miscellaneous application, if any, stands disposed of in

view of the abovesaid order.

                                                    (VIKAS BAHL)
                                                       JUDGE
July 07, 2022
Davinder Kumar
                 Whether speaking / reasoned                       Yes/No

                 Whether reportable                                Yes/No




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