Punjab-Haryana High Court
Jagtar Singh @ Jagga vs State Of Punjab on 11 July, 2022
149 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-49706-2021
Date of Decision: 11.07.2022
Jagtar Singh alias Jagga ...Petitioner
vs.
State of Punjab ...Respondent
Coram : Hon'ble Mr. Justice B.S. Walia.
Present: Mr. Amardeep Singh, Advocate for the petitioner.
Mr. Ayush Sarna, AAG, Punjab.
***
B.S. Walia, J. (Oral)
1. Prayer in the second petition under Section 439 of Cr.P.C. is
for grant of regular bail to the petitioner during pendency of trial in case
FIR No.0325 dated 10.11.2020, registered under Section 22 of the
Narcotics Drugs and Psychotropic Substances Act, 1985, at Police Station
Kathu Nangal, District Amritsar.
2. Learned counsel contends that CRM-M-30963-2021, was
permitted to be withdrawn at that stage vide order dated 18.08.2021
whereas the instant petition has been filed subsequently on account of no
progress having been made in the trial.
3. Learned counsel contends that the petitioner is in custody
since 10.11.2020, challan has been presented, charges have been framed
and out of 11 prosecution witnesses not even a single prosecution witness
has been examined.Learned counsel contends that the petitioner is entitled
to be released on regular bail in view of the decision of Hon'ble the
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Supreme Court in Chhita Biswas alias Subhas vs. State of West Bengal,
SLP (Crl.) No.8823 of 2019, law finder doc ID #1938935, Narcotic
Control Bureau vs. VipanSood and another, Special Leave to Appeal
(Criminal) No.5852 of 2021, upholding the order of a coordinate bench of
this Court granting regular bail to accused therein vide order dated
25.02.2021, in CRM-M-20177-2020 as also in view of the decision of this
Court in Amritpal Singh vs. State of Punjab CRM-M-53334-2021, decided
on 07.04.2022. Learned counsel for the petitioner also refers to order dated
31.05.2021, to contend that there is violation of Section 50 of the NDPS
Act and that in view of the decisions of this Court in case titled as Gannu
and another vs. State of Punjab 2017 (3) RCR (Criminal) 566, Kewal
Krishan vs. State of Punjab 2018 (4) RCR (Criminal) 580 and
Manorama Devi vs. State of Haryana 2018 (2) RCR (Criminal) 339,
entire proceedings stand vitiated and that continued detention of the
petitioner is illegal, in view of mentioning of FIR number in the
recovery/arrest memo.
4. Learned AAG, Punjab, does not dispute that the petitioner has
been in custody since 10.11.2020, challan has been presented, charges have
been framed, and out of eleven prosecution not even a single witness has
been examined till date and that the recovery from the petitioner was of
860 intoxicant tablets and the salt in the same was 'alprazolam' and as per
Sr. No.178 of the Central Government Notification, the salt 'alprazolam'
above 100 grams falls in commercial quantity, besides, as per report of the
Chemical Examiner, 'alprazolam' salt was found in the contraband and
total weight of the same was 125.5 grams, which falls in the category of
commercial quantity. However, learned AAG, Punjab, has not cited any
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judgment contrary to the judgments cited by learned counsel for the
petitioner but states that the petitioner is involved in another case under the
NDPS Act i.e. FIR No.323 dated 09.11.2020, registered under Section 22
of the NDPS Act on the basis of disclosure statement of the co-accused but
concedes that no recovery was effected from the petitioner in said case.
5. I have considered the submissions of learned counsel for the
parties.
6. In Chitta Biswas alias Subhas's case (supra), before Hon'ble
the Supreme Court, it was argued that the petitioner therein had been in
custody for one year, six months and seventeen days and out of ten
prosecution witnesses only four witnesses had been examined before the
trial Court, recovery in said case from the petitioner therein was of 46
bottles of phensydryal cough syrup containing codeine mixture above
commercial quantity, prayer for regular bail under Section 439 of Cr.P.C.
was rejected by Hon'ble the Calcutta High Court but Hon'ble the Supreme
Court was pleased to grant regular bail to the petitioner therein in view of
the facts and circumstances on record, subject to the petitioner furnishing
bail bonds in the sum of Rs.2 Lakh with two like sureties to the satisfaction
of the Judge, Special Court, NDPS Act, Nadia at Krishnagar as also by
granting liberty to the learned Special Court to impose any such other
condition as it deemed appropriate to ensure the presence and participation
of the petitioner in the pending trial.
7. Co-ordinate Bench of this Court in CRM-M-20177-2020, in
case titled as VipanSood Vs. State of Punjab and another decided on
25.02.2021, allowed regular bail to the petitioner therein in a case
involving recovery of 3.8 kg charas, by taking into account that the
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petitioner therein had been in custody for more than one year and seven
month, co-accused had been granted regular bail vide order dated
15.10.2020, challan had been presented and the trial was likely to take a
long time to conclude. Hon'ble the Supreme Court vide order dated
24.08.2021, in case titled as Narcotic Control Bureau vs. VipanSood and
another, dismissed Special Leave to Appeal (Criminal) No.5852 of 2021
against said decision.
8. In Amritpal Singh's case (supra), reference was made to the
decision of a Coordinate Bench in Ankush Kumar alias Sonu vs. State of
Punjab, 2018 (4) RCR (Criminal) 84, wherein Section 37 of the NDPS Act
was considered in-extenso and bail was granted in a case involving
recovery of commercial quantity of contraband. Relevant extract of the
decision in Ankush Kumar alias Sonu's case (supra) 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
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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.
9. In Amrtipal Singh's case (supra), reliance was also placed on
the decision inVipanSood's case (supra) as also to the decision of Hon'ble
Supreme Court upholding the said decision, involving commercial quantity
of 3.8 kgs of charas, on account of the petitioner therein being in custody
for a period of one year and seven months. The said order was upheld by
Hon'ble the Supreme Court vide order dated 24.08.2021, passed in SLP
(Crl.) No.5852 of 2021. In Amit Singh alias Moni vs. Himachal Pradesh,
Criminal Appeal No.668 of 2020, Hon'ble the Supreme Court vide order
dated 12.10.2020, granted regular bail to the appellant therein in a case
involving 3 kg 800 grams of charas primarily on the ground of substantial
custody as also that the trial would take long time to conclude.
10. In Ajay Kumar alias Nannu vs. State of Punjab and other
connected matters, a Coordinate Bench of this Court vide order dated
31.03.2021, after taking into consideration the stipulations of Section 37 of
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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 bail and the said condition was incorporated in para No.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 to be filed by the prosecution in this
regard."
10. Reference was also made to the decision of Hon'ble Division
Bench of this Court dated 31.08.2021, in CRM-8262-2021 in CRA-S-
3721-SB-2015, in case titled as Harpal Singh vs. National Investigating
Agency and another, wherein suspension of sentence was allowed in a case
where the recovery was of commercial quantity. In the above mentioned
order, Hon'ble the Division Bench took into account the right vested with
the accused/convict under Article 21 of the Constitution of India for a
speedy trial.
11. Reference has also been made to the decision of Hon'ble the
Supreme Court in State (NCT of Delhi) vs. Lokesh Chadha (2021) 5
SCC 724, wherein the Hon'ble Supreme Court after considering the scope
of Section 37 of NDPS Act, was pleased to suspend the sentence of the
applicant, after primarily considering the period of custody as also the fact
that the appeal was not likely to be heard in the near future.
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12. Accordingly, in view of the fact that the petitioner is in
custody since 10.11.2020, challan was filed on 22.06.2021 thereafter,
charges were framed on 10.09.2021 and out of 11 prosecution witnesses,
none has been examined till date, recovery is of 125.5 gms of 'alprazolam'
i.e. marginally higher than the commercial quantity of 100 gms, the other
case in which the petitioner is involved is on the basis of disclosure
statement and no recovery was made from him and the petitioner is on bail
in said case besides the petitioner has made out an arguable point in the
light of decision in Gannu and another's case (supura), Kewal Krishan's
(supra) and Manorama Devi's case (supra), the instant petition is allowed
and the petitioner is ordered to be released on regular bail during the
pendency of the trial, subject to his furnishing bail / surety bonds to the
satisfaction of the learned CJM / Trial Court / Duty Magistrate, concerned,
provided he is not 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(s)fixed, unless personal presence is exempted.
4. The petitioner shall not commit an offence similar to the
offence of which he is accused, 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 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 application.
(B.S. Walia)
Judge
11.07.2022
rajesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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