Punjab-Haryana High Court
Naresh Kumar Jain vs State Of Haryana And Another on 11 December, 2023
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2023:PHHC:158584
CRM-M-42945 of 2023 -1- 2023:PHHC:158584
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
220
CRM-M-42945 of 2023
Date of Decision: 11.12.2023
Naresh Kumar Jain ..... Petitioner
Versus
State of Haryana and another ..... Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Nikhil Ghai, Advocate and
Mr. P.S. Bindra, Advocate
for the petitioner.
Mrs. Palika Monga, DAG, Haryana.
Ms. Puneeta Sethi, Senior Standing Counsel
for respondent No.2-NCB.
*****
VIKAS BAHL, J (ORAL)
1. This is the second petition under Section 439 Cr.P.C. for grant
of regular bail to the petitioner in complaint No.03/2021 dated 02.07.2021,
(Annexure P-1) under Sections 8, 21, 22, 27-A, 28 and 29 of the NDPS Act,
1985, registered at Police Station Central Bureau of Narcotics Janak Puri,
New Delhi.
2. Brief facts of the present case are that a specific information
was received on 29.06.2021 by Parveen Dhull, Inspector working in the
office of Superintendent Preventive and Intelligence Cell, Central Bureau of
Narcotics, New Delhi to the effect that one person namely Sachin was
indulging in an illegal business of narcotic and psychotropic medicines and
that he had kept the said medicines without bills for doing illegal business
in his house and accordingly, a raid was conducted and huge quantity of the
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said medicines was recovered from the house of Sachin. The details of the
said medicines recovered, has been given in paragraph 3 of the complaint
dated 02.07.2021 (Annexure P-1). Sachin was arrested and his statement
under Section 67 of the NDPS Act was recorded and in his statement, he has
stated that the medicines were supplied to him by Ankur Garg, the medical
representative (MR) of M/s Modi Mundi Pharma, whose mobile number
was 75038-30880. It has further been recorded in the said statement (page
27 of the complaint) that certain narcotic drugs/medicines were supplied to
him by one Ashish and the contact number of the said Ashish was 94562-
30620 and rest of the recovered medicines were supplied by M/s Mahavir
Pharmaceuticals and contact number of M/s Mahavir Pharmaceuticals was
92120-72018. In pursuance of the said statement, Ankur Garg and Ashish
were arrested. A raid was conducted in the premises of M/s Mahavir
Pharmaceuticals which was a proprietorship of Yogender son of Chander
Bhan and during the said raid, the present petitioner was found in the
premises of M/s Mahavir Pharmaceuticals and from the said premises,
several medicines and injections were recovered, the details of which have
been given in paragraph 13 of the complaint. It was verified during the
course of investigation that the said M/s Mahavir Pharmaceuticals had valid
drug licences (Anneuxres P-2 and P-3). Yogender who was stated to be the
proprietor of M/s Mahavir Pharmaceuticals, has been granted the benefit of
anticipatory bail, vide order dated 05.05.2023 passed by the Additional
Sessions Judge, Jhajjar and his statement under Section 67 of the NDPS Act
was also recorded. The investigation in the present case has been completed
and the challan has been filed before the trial Court and the charges have
already been framed and there are 24 witnesses, none of whom have been
examined and the case is now fixed for 16.01.2024 for prosecution
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evidence. Co-accused Ashish has been granted bail by a Co-ordinate Bench
of this Court in CRM-M-38557-2023, vide order dated 04.09.2023 and
Ankur Garg has also been granted regular bail, vide order dated 29.05.2023
passed by the Additional Sessions Judge, Jhajjar.
3. Learned counsel for the petitioner has submitted that the
petitioner has been in custody since 01.07.2021 and there are 24 witnesses,
none of whom have been examined and thus, the trial is likely to take time.
It is submitted that the petitioner is not involved in any other case and the
previous bail application of the petitioner was dismissed as withdrawn on
09.12.2022, at that stage with liberty to file an application before the trial
Court for regular bail. It is further submitted that after the passing of the
said order by the High Court, the petitioner had sought regular bail before
the trial Court but the trial Court had rejected the said bail application, vide
order dated 21.07.2023 (Annexure P-10) and thus, the petitioner has filed
the present second regular bail petition before this Court. It is submitted
that the trial has not made much progress as no witness has been examined
in spite of the fact that the petitioner has been in custody for more than 2
years and 5 months and that 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
period, the concession of bail has been 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. Narcotric Control Bureau".
4. Learned counsel for the petitioner has further submitted that the
petitioner has a good case on merits. It is submitted that the secret
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information was against Sachin and not against the present petitioner and
recovery of narcotic and psychotropic medicines is initially from the
premises of Sachin. It is submitted that even Sachin has not named the
present petitioner but has named Ankur Garg and Ashish and M/s Mahavir
Pharmaceuticals as the persons/company who have been supplying narcotic
medicines which have been recovered from Sachin. It is submitted that the
said Ankur Garg and Ashish have been granted bail and that the case of the
petitioner is on a better footing than that of Ankur Garg and Ashish as the
petitioner has not been named by Sachin from whom the recovery is
effected. It is further submitted that the premises of M/s Mahavir
Pharmaceuticals as per the case of the prosecution, was also raided and
narcotic and psychotropic medicines/injections were recovered from the
said premises but there are valid drug licenses (Annexures P-2 and P-3) in
the name of Yogender (co-accused) with respect to the said premises. It
has been highlighted that M/s Mahavir Pharmaceuticals is a proprietorship
of Yogender and even the said premises is stated to be taken on rent by M/s
Mahavir Pharmaceuticals through its proprietor Yogender and regarding the
same, reference has been made to the agreement dated 08.07.2020 and it is
submitted that the petitioner is neither a signatory to the same, nor a tenant,
nor the owner of the said premises. It is further argued that the statement of
the said Yogender has been recorded under Section 67 of the NDPS Act and
reference to the said statement has been made in paragraph 23 (page 49) of
the complaint (Annexure P-1) to highlight that the said Yogender has
accepted that he had supplied the medicines without bills to the prime
accused Sachin and a fake supply bill was generated in computer in the
name of the hospitals. It is argued that the said Yogender has been granted
the benefit of anticipatory bail, vide order dated 05.05.2023 passed by
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Additional Sessions Judge, Jhajjar and a copy of the said order has been
handed over to this Court during the course of arguments and the same has
been taken on record as Mark 'A'. It is submitted that the case of the
petitioner is on a better footing than that of Yogender and thus, the
petitioner deserves the concession of regular bail. The order granting
concession of regular bail passed in favour of Ankur Garg has also been
supplied during the course of arguments and the same is taken on record as
Mark 'B'. It is submitted that the statements of several proprietors including
that of Chander Gupta proprietor of M/s Laxmi Medical Hall, Santosh
Kumar proprietor of M/s AS Pharma, Navdeep Jindal proprietor of M/s MS
Jindal and a large number of other persons who had supplied medicines to
M/s Mahavir Pharmaceuticals along with the bills was recorded during the
course of investigation and it was found that the said supplies were legal
and that none of the said suppliers have been made an accused in the present
case. It is further submitted that the recovery in the present case has already
been effected and no purpose would be served by keeping the petitioner in
further incarceration.
5. Learned counsel for respondent No.2, on the other hand, has
opposed the present petition for grant of regular bail and has submitted that
recovery of narcotic and psychotropic medicines was made from M/s
Mahavir Pharmaceuticals on 01.07.2021. It was the petitioner who was
apprehended at the spot. It is further submitted that during investigation, on
the basis of CDR of the mobile number recovered from the possession of
the petitioner, it has been revealed that the petitioner and the co-accused
Sachin were in constant touch with each other, which shows that the
petitioner is also involved in the illegal business of narcotics trade. It is
submitted that although the drug license is in the name of M/s Mahavir
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Pharmaceuticals in which it is mentioned that Yogender (co-accused) is the
proprietor but during investigation, it has been found that even the present
petitioner has 50% share in the firm i.e. M/s Mahavir Pharmaceuticals. It is
submitted that the supply of medicines without bills has been done from
M/s Mahavir Pharmaceuticals to the said Sachin and since the petitioner
also has 50% share in the business of M/s Mahavir Pharmaceuticals, thus,
he and Yogender both are responsible for the working of M/s Mahavir
Pharmaceuticals. It has further submitted that the delivery challan No.4587
dated 29.06.2021 i.e. the date of seizure from Sachin, was also found in the
whatsapp chat of mobile No.92120-72018, which was seized from the
petitioner and that the said mobile number was also mentioned in the letter
head of M/s Mahavir Pharmaceuticals which also shows the active
involvement of the petitioner. It is submitted that the recovery from Sachin
was of commercial quantity and thus, bar under Section 37 would apply. It
is further submitted that the petitioner in his statement recorded under
Section 67 has admitted that Yogender had not come to the shop for the last
two months and he has 50% share in the business of M/s Mahavir
Pharmaceuticals. It is further submitted that as far as co-accused Ankur
Garg and Ashish are concerned, no recovery has been effected from them
whereas recovery has been effected from the premises of M/s Mahavir
Pharmaceuticals in which the petitioner has 50% share. It is thus submitted
that the petitioner does not deserve the concession of regular bail.
6. Learned counsel for the petitioner, in rebuttal, has submitted
that the mobile No.92120-72018 is not in the name of the petitioner. It is
further submitted that the statement of the petitioner recorded under Section
67 of the NDPS Act is not admissible in evidence.
7. This Court has heard learned counsel for the parties and has
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perused the paper-book.
8. In the present case, the petitioner has been in custody since
01.07.2021 (more than 2 years and 5 months) and the investigation is
complete and there are 24 witnesses, none of whom have been examined
and thus, the trial is likely to take time. The petitioner is stated to be not
involved in any other case. It has been repeatedly observed by the Hon'ble
Supreme court that in a case where the conclusion of trial is likely to take
time and the accused has undergone a substantial period of custody and the
accused has clean antecedents, then the said accused deserves the
concession of regular bail even in cases in which the bar under Section 37
of the NDPS Act is attracted. Reference in this regard may be made to the
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, in which it was 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 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
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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."
9. A perusal of the above order would show that in the abovesaid
case, the Hon'ble Supreme Court was pleased to grant regular bail to the
petitioners therein in a case where the bar under Section 37 of the NDPS
Act applied, after taking into consideration the fact that the custody of the
petitioners therein was one year and four months and the investigation had
been completed and the conclusion of the trial would take time.
10. 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 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
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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."
11. A perusal of the said order would also show that the said case
was under the NDPS Act and the provisions of Section 37 of the NDPS Act
were also mentioned in the same and the bail was granted primarily by
considering that 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.
12. 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 (Date of arrest was 21.07.2018 and order granting bail was
dated 07.02.2020). 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
be in possession of narcotic substance i.e. 46 bottles of
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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."
13. 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 Solicitor General for the respondent.
Considering the facts and circumstances on record and
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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."
14. 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).
15. 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: -
"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."
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16. 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
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.
17. The Hon'ble Division Bench of this Court in CRM-3773-2019
in CRA-D-198-DB-2017, vide a detailed judgment dated 12.01.2022, 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.
18. 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
enshrined under Article 21 of the Constitution of India.
19. In addition to the above, it would also be relevant to note that
in the present case, the secret information was received against co-accused
Sachin and not against the present petitioner and the initial recovery of
commercial quantity of narcotic and psychotropic medicines is from the
premises of the said Sachin. Sachin in his disclosure statement had named
Ankur Garg and Ashish and M/s Mahavir Pharmaceuticals to be the
persons/company who had supplied the said tablets/medicines without bills
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to him. The said Sachin had not specifically named the present petitioner in
the said statement. Abovesaid Ankur Garg has been granted the concession
of regular bail, vide order dated 29.05.2023 passed by the Additional
Sessions Judge, Jhajjar which has been taken on record as mark 'B'. A
perusal of the said order would show that as per the case of the prosecution,
there were text messages and telephonic conversations between Sachin and
the said Ankur Garg, who has been granted the concession of regualr bail.
Similarly, Ashish has also been granted the concession of regular bail by a
Co-ordinate Bench of this Court, vide order dated 04.09.2023 passed in
CRM-M-38557-2023. Even a perusal of the said order would show that
there were text messages and telephonic conversations between said Ashish
and Sachin and the said Ashish was in custody for a period of one year and
11 months. It is the case of the prosecution that the premises of M/s
Mahavir Pharmaceuticals was raided on 01.07.2021 and medicines and
injections were recovered from the said premises. During the investigation,
it was found that the said firm had valid drug licenses, copies of which have
been annexed with the petition as Annexures P-2 and P-3. It has been
highlighted on behalf of the petitioner that the said licenses have been
issued in the name of M/s Mahavir Pharmaceuticals, which show that the
proprietor of the said firm is Yogender and not the petitioner and even the
agreement dated 08.07.2020 (Annexure P-7) by virtue of which the said
premises has been taken by M/s Mahavir Pharmaceuticals from one Rajiv
Sharma, has also been entered into (on behalf of M/s Mahavir
Pharmaceuticals) by the said Yogender and the petitioner is not a signatory
to the same. It is also the case of the petitioner that the statement of the said
Yogender has been recorded under Section 67 of the NDPS Act and
reference to the said statement has been made in paragraph 23 (page 49) of
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the complaint (Annexure P-1) to highlight that the said Yogender has
accepted that he had supplied the medicines without bills to the prime
accused Sachin. The said Yogender has been granted anticipatory bail, vide
order dated 05.05.2023 passed by Additional Sessions Judge, Jhajjar (taken
on record as mark 'A'). The question as to who is the person, who is in
actual control of M/s Mahavir Pharmaceuticals would be finally adjudicated
during the course of trial and this Court does not wish to give any final
opinion with regard to the same.
20. From the above said facts, it is apparent that apart from the
petitioner being in custody for a period of more than two years and five
months and there being 24 witnesses, none of whom have been examined
and thus, the trial is likely to take time, and also the fact that the petitioner is
not involved in any other case, the petitioner has several arguable points,
which would be finally adjudicated during the course of trial and thus, the
petitioner deserves the concession of regular bail.
21. 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 fixed, unless personal presence is exempted.
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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.
22. 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.
23. However, 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)
11.12.2023 JUDGE
D.Bansal
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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