Punjab-Haryana High Court
Suba Singh vs State Of Haryana on 4 July, 2023
Neutral Citation No:=2023:PHHC:085238
CRM-M-17929-2022 (O&M) -1- 2023:PHHC:085238
209
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-17929-2022 (O&M)
Date of Decision: 04.07.2023
Suba Singh
....Petitioner(s)
Versus
State of Haryana
.....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. G.S. Sandhu, Advocate, for the petitioner.
Mr. Naveen Kumar Sheoran, DAG, Haryana.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present petition has been filed under Section 439 of the Code
of Criminal Procedure for grant of regular bail to the petitioner in FIR
No.0923 dated 02.12.2020, under Section 18 of NDPS Act, registered at Police
Station Karnal Sadar, District Karnal.
2. It has been submitted by the learned counsel for the petitioner that
the petitioner is in custody from 02.12.2020 which is more than 2 years and 7
months. He submitted that it is a case where the petitioner has been falsely
implicated in the present case because of rivalry with the pollice. He
submitted that in the year 2005 and 2006, he was falsely involved in two cases
under the NDPS Act and he has since been acquitted in both cases and it was
because of this reason that he has been falsely implicated in the present case
wherein there was alleged recovery of 7 kg and 500 grams of opium from
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the petitioner and the co-accused while they were in the car.
3. Learned counsel further submitted that it is not only the long
custody of more than 2 years and 7 months which would entitle the petitioner
for the grant of regular bail in view of the judgment of the Hon'ble Supreme
Court in Mohd. Muslim @ Hussain Versus State (NCT of Delhi) [2023 AIR
(SC) 1648] but also the facts of the present case suggest that even the notice
which was given under Section 50 of the NDPS Act was defective in nature.
During the course of arguments, the learned counsel for the petitioner has also
referred to notice under Section 50 NDPS Act and also the reply filed by the
State and contended that as per the notice itself, an offer was given to the
petitioner that he has a legal right for his own search and the search of his
vehicle. He submitted that such an offer for search of vehicle is not
warranted under the provisions of the NDPS Act. He submitted that in addition
to the above, the language of the notice would suggest that an offer was given
that the petitioner may call a Gazetted Officer or a Magistrate which is also not
the intention of the provisions of Section 50 of the NDPS Act and therefore,
there is a violation of the aforesaid provision and which is fatal to the
prosecution. He submitted that be that as it may considering the long custody of
the petitioner and the fact that six witnesses have already been examined, he
may be considered for the grant of regular bail and in view of the aforesaid
facts and circumstances, the bar contained under Section 37 of the NDPS Act
will not apply in the present case.
4. On the other hand, Mr. Naveen Kumar Sheoran, DAG, Haryana
has submitted that so far as the custody period of the petitioner is concerned,
the same is not in dispute and at present the petitioner is not involved in any
other case. Earlier, he was involved in two more cases under the NDPS Act in
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which he has been acquitted. He has however submitted that since the total
recovery from the petitioner and the co-accused falls under the category of
commercial quantity, the prayer of the petitioner is hit by the bar contained
under Section 37 of the NDPS Act. .
5. I have heard the learned counsel for the parties.
6. The petitioner has already faced incarceration for more than 2
years and 7 months. Six witnesses have already been examined. The petitioner
is not involved in any other case under the NDPS Act and earlier he was
involved in two cases under the NDPS Act in which according to the learned
counsel for the parties, he has since been acquitted. This Court at this stage
would not go into the merits of the contentions raised by the learned counsel for
the petitioner pertaining to the effect of the language used in the notice under
Section 50 of the NDPS Act because it is only the subject matter at the time
of trial but for the purpose of considering the prayer of the petitioner for grant
of bail, the aforesaid language of the notice would certainly have bearing for
the purpose of bar contained under Section 37 of the NDPS Act. Hon'ble
Supreme Court in Mohd. Muslim @ Hussain (Supra) has dealt with the issue
pertaining to delay in the trial vis-a-vis bar contained under Section 37 of the
NDPS Act. The relevant portion of the aforesaid judgment contained in para
No.19 and 20 are reproduced 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
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(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.
20. The standard to be considered therefore, is one, where the court
would look at the material in a broad manner, and reasonably see
whether the accused's guilt may be proved. The judgments of this
court have, therefore, emphasized that the satisfaction which courts
are expected to record, i.e., that the accused may not be guilty, is
only prima facie, based on a reasonable reading, which does not
call for meticulous examination of the materials collected during
investigation (as held in Union of India v. Rattan Malik). Grant of
bail on ground of undue delay in trial, cannot be said to be fettered
by Section 37 of the Act, given the imperative of Section 436A which
is applicable to offences under the NDPS Act too (ref. Satender
Kumar Antil supra). Having regard to these factors the court is of
the opinion that in the facts of this case, the appellant deserves to be
enlarged on bail.
7. The petitioner has faced incarceration for more than 2 years and 7
month and therefore, it appears that the trial is not progressing fast. Therefore,
this Court is of the view only for the purpose of considering the effect of
Section 37 of the NDPS Act, the petitioner is entitled for the grant of regular
bail in the light of Article 21 of the Constitution of India and also in the light
of the judgment of the Hon'ble Supreme Court in the case of Mohd. Muslim @
Hussain (Supra).
8. Consequently, the present petition is allowed. The petitioner shall
be released on regular bail subject to furnishing bail bonds/surety to the
satisfaction of the learned trial Court/Duty Magistrate concerned, if not
required in any other case.
9. However, anything observed hereinabove shall not be treated as an
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expression of opinion on merits of the case and is meant for the purpose of
deciding the present petition only.
04.07.2023 (JASGURPREET SINGH PURI)
rakesh JUDGE
Whether speaking : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:085238
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