Punjab-Haryana High Court
Bavanish @ Bhavnish vs Union Of India on 11 April, 2023
Neutral Citation No:=2023:PHHC:048719
264
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M No.24594 of 2022 (O&M)
Date of decision: 11.04.2023
Bavanish @ Bhavnish
....Petitioner
Versus
Union of India
....Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Tarun Sharma, Advocate
for the petitioner.
Ms. Sharmila Sharma, Advocate
for the respondent - UOI.
ARVIND SINGH SANGWAN J. (Oral)
Prayer in this 2nd petition is for grant of regular bail to the
petitioner under Section 439 of the Code of Criminal Procedure (in
short 'Cr.P.C.') in case i.e. complaint case bearing NCB Crime
No.33/2020 dated 12.06.2020 registered under Sections 8, 22, 29, 60
of the Narcotic Drugs and Psychotropic Substances Act (in short 'the
NDPS Act') (Sections 21 and 27-A of the NDPS Act added later) at
Police Station Narcotic Bureau Chandigarh.
The earlier petition was dismissed as withdrawn on
01.02.2022.
Counsel for the petitioner has submitted that the new
ground for filing this petition is that out of 22 PWs only 01 PW has
been examined so far and the petitioner is in custody for the last 02
years and 10 months.
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Brief facts of the case are that the NCB received a secret
information from the courier service DTDC that one suspected
consignment from Panchkula to Ferozepur by M/s. Bridge Greyout
Shine Pharma. Upon which, a team was constituted and recovery of
57000 tablets of TRAMADOL was effected, when the petitioner had
gone to receive the parcel.
Counsel for the petitioner has submitted that, in fact, the
petitioner is an employee of one Mohit Gupta. It is also submitted that
in Paragraphs 24 and 25 of the complaint filed by the NCB, it is stated
that the petitioner after his arrest has suffered a statement that he was
working in Amrit Enterprises for the last 05 years. One Mohit Gupta
was his childhood friend, who was residing in Ferozepur Cantt. and was
also running a medicine trading company. Bavanish and Mohit Gupta
met one Samir Gupta, who told them that they can earn huge amount in
the business of TRAMADOL. Thereafter, out of greed of money, they
agreed to work as per his desire. It is further stated that the petitioner
and Mohit Gupta, remain in touch with each other on WhatsApp
regarding the consignment of TRAMADOL tablets and some amount
was transferred in the account of Mohit and Rakesh Kumar Singla. It is
also stated that both the petitioner Bavanish @ Bhavnish and Mohit had
gone to DTDC office and the petitioner, while receiving the courier,
was apprehended by the NCB team and on checking the same, 57000
tablets of TRAMADOL were recovered.
Counsel for the petitioner has further argued that the
charges were framed much earlier, however till date, out of 22 PWs,
only 01 PW has been examined. It is also submitted that the petitioner
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is not involved in any such or similar case and he is in custody since
12.06.2020.
Counsel for the petitioner has relied upon the judgment
"Mohd Muslim @ Hussain vs State (NCT of Delhi)", passed in SLP
(Crl.) No.915 of 2023, decided on 28.03.2023, wherein the Hon'ble
Supreme Court considering the long custody of the accused facing trial
under the NDPS Act, has granted bail, holding that if the trials are not
concluded in time, the injustice wrecked on the individual is
immeasurable. Further, Paragraph 19 of the said judgment, reads as
under:-
"19. A plain and literal interpretation of the
conditions under Section 37 (i.e., that Court should be
satisfied that the accused is not guilty and would not
commit any offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore, the
only manner in which such special conditions as enacted
under Section 37 can be considered within constitutional
parameters is where the court is reasonably satisfied on a
prima facie look at the material on record (whenever the
bail application is made) that the accused is not guilty.
Any other interpretation, would result in complete denial
of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act."
Counsel appearing for the respondent/NCB, on instructions
from Intelligence Officer Amar Shahkar, could not dispute the fact that
only 01 PW has been examined out of 22 PWs but opposed the prayer
for bail.
Without commenting anything on merits of the case,
considering the fact that in the initial secret information, the petitioner
was not named and it is only at the subsequent stage, he was
apprehended while receiving the courier and in view of the fact that it
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will be a matter of trial whether a proper procedure has been followed
under Section 50 of the NDPS Act and also the fact that the petitioner is
in custody for the last 02 years and 10 months; the custodial
interrogation of the petitioner is not required and the conclusion of the
trial will take some time, this petition is allowed and the petitioner is
directed to be released on bail subject to his furnishing bail/surety
bonds to the satisfaction of the trial Court/Illaqa Magistrate/Duty
Magistrate.
However, it will be open for the prosecution to apply for
cancellation of bail of the petitioner, in case he is found involved in any
other case or misusing the concession of bail, in any manner.
(ARVIND SINGH SANGWAN)
JUDGE
11.04.2023
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2023:PHHC:048719
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