Punjab-Haryana High Court
Sunil Kumar @ Dimpa @ Dimple Masih vs State Of Punjab on 7 August, 2023
Neutral Citation No:=2023:PHHC:101628
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
218
CRM-M-12819-2022 (O&M)
Date of decision: 07.08.2023
Sunil Kumar @ Dimpa @ Dimple Masih
....Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
*****
Present : Mr. Ankur Jain, Advocate for the petitioner
Mr. H.S. Sullar, Sr. DAG Punjab
*****
AMAN CHAUDHARY. J.
1. Prayer in the present petition filed under Section 439 Cr.P.C. for the
grant of regular bail to the petitioner in case FIR No.76 dated 23.07.2021,
registered under Section 21 of NDPS Act (Section 29 of NDPS Act added later
on), at Police Station Chohla Sahib, District Tarn Taran.
2. Learned counsel contends that the petitioner is in custody for 2 years.
The alleged recovery effected from him is marginally above the non-commercial
quantity, it being 260 grams of Heroin. The mandatory provisions of Section 50
NDPS Act were not complied with while effecting recovery. Challan has been
presented. Charges have not been framed. In all there are 13 prosecution
witnesses. Though, the petitioner is involved in two more cases under the NDPS
Act, however, non-commercial quantity of contraband have been recovered in
those cases, wherein he is on bail. In this regard, reliance is placed on the
judgment of Hon'ble The Supreme Court in Maulana Mohd. Amir Rashadi vs.
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State of U.P. and others, 2012(2) SCC 382.
3. The custody certificate dated 06.08.2023 has been filed by learned
State counsel, as per which, the petitioner is behind bars for 2 years and 11 days.
4. Learned State counsel opposes the bail on the ground that the
petitioner was apprehended at the spot and the commercial quantity of contraband
has been recovered from him. He is however unable to controvert the submissions
with regard to stage of the case and petitioner is on bail in other cases registered
against him.
5. Heard.
6. Hon'ble The Supreme Court in the case of Maulana Mohd. Amir
Rashadi (Supra) had held that, "As observed by the High Court, merely on the
basis of criminal antecedents, the claim of the second respondent cannot be
rejected. In other words, it is the duty of the Court to find out the role of the
accused in the case in which he has been charged and other circumstances such as
possibility of fleeing away from the jurisdiction of the Court etc."
7. The Coordinate Bench of this Court in Gurpreet Singh vs. State of
Punjab in CRM-M-45214-2021 decided on 23.03.2022, where 255 grams of
heroin was recovered, custody was a little over 1 year and there being no criminal
antecedents, the petitioner was granted the concession of bail on the aforesaid
grounds. In Balwinder Singh vs. State of Punjab in CRM-M-37684-2021
decided on 14.02.2022, the bail was granted to the petitioner while relying on
Jagjit Singh @ Jagga Gill vs. State of Punjab 2020(2) RCR (Cr.) 612, the
alleged recovery effected being 258/260 grams of heroin, the custody was of 1
year and 16 days and while holding that the bar under Section 37 NDPS Act in the
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case of commercial quantity cannot be termed to be absolute in nature and the
departure can be made if the alleged recovery is marginally higher than the
commercial quantity.
8. Hon'ble The Supreme Court of India in the case of Dheeraj Kumar
Shukla vs. The State of Uttar Pradesh, SLP (Criminal) No.6690/2022 decided
on 25.01.2023 observed that in a case of long custody period, involving quantity
recovered to be of commercial nature, where the trial is yet to commence, though
charges had been framed, the condition of Section 37 of NDPS Act can be
dispensed with. Similarly, in the case of Shariful Islam @ Sarif vs. The State of
West Bengal SLP (Crl.) No.4173/2022, decided on 04.08.2022, Hon'ble The
Supreme Court of India granted bail to the petitioner in a case of recovery of
commercial quantity of contraband, considering incarceration for over 1 year and
6 months and there being no likelihood of completion of trial in the near future. In
the case of Bhupender Singh vs. Narcotic Control Bureau (2022) 2 RCR (Crl.)
706, the Division Bench of this Court observed with regard to achieving balance
between right to speedy trial guaranteed under Article 21 of the Constitution of
India and rigors of Section 37 of NDPS Act. This Court in the case of Balraj
Singh vs. State of Punjab CRM-M-57386-2022, decided on 14.12.2022 has
followed the dictum laid down by Hon'ble The Supreme Court of India and
granted bail to the petitioner therein after he had undergone total custody of 1 year
and 6 months. In the case of Munasi Masih vs. State of Punjab,
CRM-M-31504-2022, decided on 06.02.2023, this Court granted bail to a first
offender from whom commercial quantity of contraband had been recovered and
only 2 out of 13 PWs have been examined, by observing that in view of delayed
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trial, the rigors of Section 37 of NDPS Act can be diluted to an extent and the
petitioner can be granted bail, keeping in mind the right to a speedy trial as
envisaged under Article 21 of the Constitution of India.
9. Considering the facts and circumstances of the case, in particular that
the petitioner is in custody for the last 2 years and 11 days; on bail in other cases;
alleged recovery is marginally above the non-commercial quantity; though the
challan stands presented, however, charges are yet to be framed; in all there are 13
prosecution witnesses, the trial is likely to take a considerable time, thus further
incarceration of the petitioner would be violative of his right enshrined under
Article 21 of the Constitution of India and the rigors of Section 37 of NDPS Act
can be diluted bearing in mind the righty to a speedy trial, thus, the present
petition for grant of regular bail deserves to be allowed.
10. As a result, the present petition is allowed. The petitioner is ordered
to be released on regular bail, subject to his furnishing bail/surety bonds to the
satisfaction of trial Court/Duty Magistrate concerned and subject to his not being
required in any other case. The petitioner shall abide by the following conditions:-
(i) The petitioner will not tamper with the evidence during
the trial.
(ii) The petitioner will not pressurize/ intimidate the
prosecution witnesses.
(iii) The petitioner will appear before the trial Court on each
and every date fixed, unless is exempted by a specific
order of Court.
(iv) The petitioner shall not commit an offence similar to the
offence of which, he is an accused, or for commission of
which he is suspected of.
(v) The petitioner shall not directly or indirectly coerce,
induce, threaten or promise to any person acquainted
with the facts of the case so as to dissuade him/ her from
disclosing such facts to the Court or to any police officer
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or tamper with the evidence in any manner.
(vi) The petitioner shall not in any manner misuse his liberty.
(vii) The petitioner shall furnish his address and mobile
number to the Trial Court forthwith and shall not change
the same till the conclusion of the trial and in case for
any reason, the petitioner seeks to change any of the
aforesaid, the same shall be done only with prior
intimation to the learned Trial Court, stating the reason
for the same.
(viii) The petitioner shall not leave the country without prior
permission of the trial Court.
(ix) The trial Court/Duty Magistrate may impose any other
condition, as deemed appropriate while releasing the
petitioner.
11. It is made abundantly clear that in case there is any breach of the
aforesaid conditions, the State shall be at liberty to seek cancellation of bail as
granted to the petitioner by this order.
12. In view of the above, it is clarified that the observations made herein
are limited for the purpose of present proceedings and would not be construed as
an opinion on the merits of the case and the trial would proceed independently of
the aforesaid observations.
(AMAN CHAUDHARY)
JUDGE
August 07, 2023
M.Kamra
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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