Punjab-Haryana High Court
Harinder Singh @ Honey vs State Of Punjab on 2 August, 2023
Neutral Citation No:=2023:PHHC:098873
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
2023:PHHC:098873
(214) CRM-M-36119-2023
Date of Decision: 02.08.2023
Harinder Singh @ Honey --Petitioner
Versus
State of Punjab --Respondent
CORAM:- HON'BLE MR. JUSTICE VIKAS BAHL.
Present:- Mr. Rajvir Singh, Advocate for petitioner.
Mr. Rohit Bansal, Sr. D.A.G., Punjab.
***
VIKAS BAHL.J (Oral)
1. This is the second petition filed under Section 439 of Cr.P.C.
for grant of regular bail to the petitioner in FIR No.429 dated 6.12.2021
registered under Sections 22 of the Narcotic Drugs and Psychotropic
Substances Act, at Police Station Sohana, District SAS Nagar.
2. Learned counsel for the petitioners has submitted that the
petitioner is in custody since 6.12.2021 and the investigation is complete
and the challan stands presented and out of total 15 prosecution witnesses,
only one has been examined so far. It is further submitted that petitioner is
not involved in any other case and the last bail application was dismissed as
withdrawn on 5.9.2022 at that stage and thereafter sufficient time has
elapsed but the trial has not made much progress, thus, entitling the
petitioner to file the present bail application and keeping in view the
custody of the petitioner, he deserves the concession of regular bail, as any
further incarceration would 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 concession of bail has been
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granted. Reliance has also been placed upon an order of the Hon'ble
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".
3. It is further submitted that in the present case co-accused of the
petitioner namely Gurmukh Singh @ Gomma @ Manny, who is similarly
placed as the present petitioner, has been granted the concession of regular
bail by a Coordinate Bench of this court in CRM-M-35172-2023 decided on
28.7.2023. It is submitted that another co-accused Yogesh Kumar @ Yogi,
who is HIV positive, has been granted interim bail on account of his illness.
It is submitted that the custody of the petitioner is longer than that of co-
accused Gurmukh Singh @ Gomma @ Manny and thus, on the ground of
parity, the petitioner has prayed for grant of regular bail.
4. On the other hand, learned State counsel has opposed the
present petition for grant of regular bail to the petitioner and has submitted
that the recovery effected from the petitioner falls within the category of
commercial quantity and thus, bar under Section 37 of the NDPS Act would
apply in the present case and thus, he does not deserve the concession of
regular bail.
5. This Court has heard learned counsel for the parties and has
gone through the paper-book.
6. Hon'ble the Supreme Court vide order dated 04.05.2023
passed in Special Leave to Appeal (Crl.) No(s).3221/2023 in case titled as
Hasanujjaman and others Vs. The State of West Bengal, had observed as
under:-
"xxx xxx xxx xxx. They were arrested on the spot and
have been in custody for more than one year and four months.
3. We have heard learned counsel for the parties and
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carefully perused the record.
4. The investigation is complete; chargesheet has been
filed, though the charges are yet to be framed. The conclusion of trial
will, thus, take some reasonable time, regardless of the direction
issued by the High Court to conclude the same within one year from
the date of framing of charges. The petitioners do not have any
criminal antecedents. There is, thus, substantial compliance of
Section 37 of the NDPS Act.
5. In such circumstances, but without expressing any
views on the merits of the case, we deem it appropriate to release the
petitioners on bail subject to the terms and conditions as may be
imposed by the Trial Court.
6. Additionally, it is clarified that in case the petitioners
are found involved in any other case under the NDPS Act or other
penal law, it shall amount to misuse of the concession of bail granted
to them today, and in such a case, necessary consequences shall
follow.
7. The petitioners are further directed to appear before
the Trial Court regularly. In the event of they being absent, it shall
again be taken as a misuse of concession of bail.
8. The Special Leave Petition stands disposed of in the
above terms.
9. As a result, pending interlocutory application also
stands disposed of."
7. A perusal of the same would show that in the abovesaid case,
the custody of the accused was 1 year and 4 months and while taking into
consideration the facts that investigation has been completed and the
conclusion of trial would take time, the Hon'ble Supreme Court was pleased
to grant the concession of regular bail to the petitioners therein.
8. 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: -
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"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."
9. 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.
10. 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.
According to the prosecution, the appellant was found to
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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."
11. 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 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
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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."
12. 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).
13. 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
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
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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."
14. 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.
15. The Hon'ble Division Bench of this Court in Bhupender's case
(supra) 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.
16. A Coordinate Bench of this Court vide order dated 24.04.2023
passed in CRM-M-19626-2022 titled as Roop Singh Vs. State of Punjab has
granted the concession of regular bail in a case involving recovery of
commercial quantity of poppy husk where the custody was for a period of 1
year, 6 months and 26 days on the ground of long incarceration of the
accused person being in violation of right of the accused for speedy trial
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enshrined under Article 21 of the Constitution of India.
17. In the present case the petitioner is in custody since 6.12.2021
and the investigation in the case is complete and challan stands presented
and out of 15 prosecution witnesses, only one has been examined and thus
the conclusion of trial would take some time. The petitioner is stated to be
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.
18. Co-accused of the petitioner namely Gurmukh Singh @
Gomma @ Manny has been granted the concession of regular bail by a
Coordinate Bench of this court vide order dated 28.7.2023 passed in CRM-
M-35172-2023 and Yogesh Kumar @ Yogi has been granted interim bail on
account of the fact that he is an HIV positive patient, the case of the
petitioner is on parity with that of co-accused Gurmukh Singh @ Gomma
@ Manny.
19. 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:-
a). The petitioner will not tamper with the evidence during the
trial.
b). The petitioner will not pressurize / intimidate the
prosecution witness(s).
c). The petitioner will appear before the trial Court on the date
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fixed, unless personal presence is exempted.
d). 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.
e). 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.
20. 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.
20. 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.
(VIKAS BAHL)
JUDGE
02.08.2023
lucky
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
Neutral Citation No:=2023:PHHC:098873
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