Punjab-Haryana High Court
Parghat Singh vs State Of Haryana And Another on 1 November, 2022
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No.M-32439 of 2022 (O&M)
Date of Decision: November 01, 2022
Parghat Singh
...Petitioner
VERSUS
State of Haryana and another
...Respondents
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Ms.Shaveta Sanghi, Advocate
for the petitioner.
None for respondent No.1.
Ms.Puneeta Sethi, Advocate
for respondent No.2-NCB
****
ARCHANA PURI, J.
This is second petition under Section 439 Cr.P.C. for grant of
regular bail, pending trial, to the petitioner, in case arising out of NCB
Crime No.66/2017 dated 11.10.2017, under Sections 8/15/18/29/60 of
NDPS Act, NCB, Zonal Unit, Chandigarh.
As per version of the prosecution, secret information was
received on 09.10.2017, about Parghat Singh s/o Gurcharan Singh, to be
indulging in trafficking of opium and about his reaching Ellanabad (HR) on
11.10.2017, through Nohal-Ellanabad road between 02.00 Hrs to 04.00 Hrs
and he is carrying opium in his truck bearing registration No.HR-47A-6097.
In pursuance thereof, on 11.10.2017, a naka was laid on the disclosed road
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and truck bearing registration No.HR-47A-6097 (as given in secret
information) was intercepted. The driver of the truck was Parghat Singh s/o
Gurcharan Singh, against whom, specifically there was prior information.
Following due procedure, Parghat Singh got recovered 15.128 kgs. of
opium and poppy husk to the extent of 1.890 kgs., whereupon,
complaint/case was registered.
On completion of investigation, complaint/challan was filed in
the Court and petitioner Parghat Singh is facing trial.
Learned counsel for the petitioner assiduously submits that the
petitioner is in custody since 11.10.2017 and has suffered incarceration for
more than five years. Also, it is submitted that there is no likelihood of
completion of trial in near future. Out of cited 12 witnesses, still only 6
witnesses have been examined. To so emphasize her submissions about the
trial proceeding at snail's pace, learned counsel for the petitioner has made
reference to the zimini orders passed by the trial Court, qua examination of
the witnesses. Further, it is also submitted that length of custody is a
material consideration to be seen. On this count, learned counsel for the
petitioner has placed reliance upon orders passed by the Hon'ble Supreme
Court in cases of 'Shariful Islam @ Sarif vs. The State of West Bengal',
decided on 04.08.2022, 'Mohammad Salman Hanif Shaikh vs. The State
of Gujarat', decided on 22.08.2022 and 'Nitish Adhikary @ Bapan vs. The
State of West Bengal', decided on 01.08.2022 and judgment passed in
'Gopal Krishan Patra @ Gopalrusam vs. Union of India, Criminal
Appeal No.1169 of 2022' decided on 05.08.2022.
Thus, summing up her arguments, learned counsel for the
petitioner submits that long incarceration, being faced by the petitioner, also
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hampers the right of speedy trial, under Article 21 of the Constitution of
India. As such, she made a prayer for grant of regular bail to the petitioner.
On the other hand, learned counsel for NCB has resisted the
claim for regular bail. Learned counsel submits that recovery effected in the
present case, falls in the bracket of commercial quantity and therefore,
rigors of Section 37 of the NDPS Act, are attracted. Also, she submits that
out of 12 cited witnesses, 6 have already been examined, 3 witnesses have
been given up and only 3 witnesses are left to be examined. She assures
that the residue witnesses shall be examined expeditiously. As such, she
made a prayer for dismissal of the present petition.
At the very outset, it is pertinent to mention that from the
zimini orders, placed on record, it is evident that complaint/challan in the
present case, was presented on 04.04.2018. Copies were supplied to the
petitioner on 10.04.2018. Thereafter, the case was adjourned for
23.04.2018, then for 01.05.2018 and 14.05.2018, for consideration on the
question of charge, solely on account of adjournment sought by the counsel
for the prosecution. Thereafter, the case was adjourned for three times and
ultimately, the charge was framed on 23.08.2018. However, for the next
three dates, the Presiding Officer was on leave and the case was adjourned
further. On 08.10.2018, one witness was examined and three witnesses,
who were present, were not examined, as Court time was over. Similar was
the position for next two dates. On 21.01.2019, service of witnesses had not
been effected and they were ordered to be served through bailable warrants
and case was adjourned for 01.03.2019. On 01.03.2019, part statement of
one PW was recorded and another witness, who was present, could not be
examined due to paucity of court time and the case was adjourned further
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for 01.04.2019. On 01.04.2019, the witness who was served, had sent a
request for adjournment and the case was adjourned for 21.05.2019. On
21.05.2019, on the request of the witness, the case was adjourned further for
16.08.2019. On 16.08.2019, two witnesses were not present despite service
and they were ordered to be served through bailable warrants for
05.10.2019. On 05.10.2019, three witnesses were present but could not be
examined, as Court time was over and case was adjourned for 16.11.2019.
On 16.11.2019, no witness was present and case was adjourned for
04.12.2019. Again, on 04.12.2019, the witnesses were not present and they
were ordered to be served through bailable warrants for 06.01.2020. On
06.01.2020, statement of one PW was completed and two witnesses, who
were present, were not examined and case was adjourned for 24.01.2020.
On 24.01.2020, one witness was examined and case was adjourned for
02.03.2020.
Thereafter, on account of Covid situation, case was adjourned
further, in pursuance of the directions given by the concerned District and
Sessions Judge, firstly for 27.05.2020, then for 29.07.2020. On 29.07.2020,
the accused was not produced and case was adjourned for 21.10.2020 and
further adjourned for the same purpose for 19.01.2021 and then for
26.02.2021. On 26.02.2021, one witness was examined and case was
adjourned for 06.02.2021, then for 04.05.2021 and further for 09.08.2021.
Thereafter, Presiding Officer was on leave and the case was adjourned
further for 24.09.2021. On 24.09.2021, no PW was present and case was
adjourned for 18.11.2021. On 18.11.2021, the service of witnesses was not
effected and case was adjourned for 11.01.2022. On 11.01.2022, one
witness was examined. However, two witnesses cited at Sr.No.10 and 11,
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were not present and they were summoned through bailable warrants for
25.02.2022. Again on the date fixed, witnesses were not present and they
were ordered to be served through non-bailable warrants for 17.05.2022.
On 13.05.2022, the case was adjourned further, as the Presiding Officer was
on leave from 16.05.2022 to 19.05.2022 and then again, on effective date,
the case was adjourned for 15.09.2022.
Thus, the seriatim of facts, as narrated aforesaid reveals that
there is no fault on the part of the petitioner, in the delay of trial. However,
fact remains that trial is proceeding at snail's pace. In fact, slackness is
reflected on the part of the prosecution, vis-a-vis the examination of the
witnesses.
In Shariful Islam's case (supra), considering the incarceration
of the accused for over a period of 1 years and 6 months and there being no
likelihood of completion of trial in the near future, the accused was directed
to be released on bail by the Hon'ble Supreme Court.
Even, in Mohammad Salman Hanif Shaikh's case (supra), the
Hon'ble Supreme Court made an observation, as herein given:-
"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 aforesaid case was under the NDPS Act and FIR was
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registered under Sections 8(c), 21(c), 22(c) and 29 of the NDPS Act. The
case of the prosecution therein was that recovery from the said petitioner
(therein) was of commercial quantity. The Hon'ble Supreme Court had
observed that concession of bail was granted to the petitioner (therein), only
on the ground that he had spent about two years in custody and conclusion
of the trial, will take some time.
In Gopal Krishna Patra's case (supra), the Hon'ble Supreme
Court, observed about the appellant (therein) to be in custody since
18.06.2020, in connection with crime registered as NCB Crime No.02/2020,
in respect of offences punishable under Sections 8, 20, 27-AA, 28 read with
Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
and also while considering the length of custody undergone by the appellant
(therein), it was of the view the case for bail is made out and thereupon, the
appeal was allowed.
A perusal of the aforesaid case would show that in the said case
also, the custody was of 2 years 1 month and 17 days and the case was
under NDPS Act. Primarily, considering the length of custody period,
concession of bail was granted to the petitioner (therein).
In Nitish Adhikary's case (supra), which was also under NDPS
Act, taking into consideration the detention period of 1 year 7 months, as on
09.06.2022 and also considering the case at preliminary stage as well as
petitioner, not having any criminal antecedents, without expressing any
views on the merits of the case, the Court was inclined to grant bail to the
petitioner and it was ordered, accordingly.
A perusal of the aforesaid order would also show that the said
case was under NDPS Act and provisions of Section 37 of the NDPS Act,
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were mentioned in the same. The bail was granted primarily considering the
custody period of the petitioner (therein) and one witness having been
examined and petitioner (therein) not having any criminal antecedents.
As already observed above, petitioner-Parghat Singh is in
custody since 11.10.2017. As per status report, furnished by the NCB, out of
cited 12 witnesses, 6 witnesses have been examined, 3 witnesses have been
given up and 3 witnesses remains to be examined. Learned counsel for
NCB has though given an assurance for expeditious examination of the
residue witnesses, but however, perusal of the zimini orders, as observed
aforesaid, reveals about the witnesses not making appearance, despite
service through bailable warrants. Thus, Court below was constrained to
issue non-bailable warrants of the witnesses. In given circumstances, there
is no likelihood of the examination of the witnesses expeditiously, as
assured by learned counsel for NCB.
The petitioner in the present case has undergone custody of
more than 5 years and as per the custody certificate, coming on record, he is
not having any criminal antecedents.
Keeping in view the aforesaid circumstances and also keeping
in view the conduct of the witnesses of the prosecution, in not making
appearance before the Court, despite service of bailable warrants, the right
of the petitioner to speedy trial, as provided by the Constitution of India, is
hampered.
In view of the aforesaid circumstances, without expressing any
opinion on merits or demerits of the rival submissions and considering the
facts and circumstances brought on record, the case for bail is made out.
Hence, the present petition is allowed and petitioner Parghat Singh is
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ordered to be released on bail subject to furnishing bail bonds in the sum of
`3,00,000/-, with two sureties in the like amount each, to the satisfaction of
the Judge, Special Court, NDPS Act. However, Special Judge shall be at
liberty to impose any further condition, as it may deem appropriate,
considering the circumstances of the case.
(ARCHANA PURI)
JUDGE
November 01, 2022
Vgulati
Whether speaking/reasoned Yes
Whether reportable No
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