Shubham Kathuria vs State Of Punjab
2023 Latest Caselaw 9577 P&H

                                                           Neutral Citation No:=2023:PHHC:085923




                                                            2023:PHHC:085923
CRM-M-18697-2023                                                     -1-

218
        IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH
                            ***
                                 CRM-M-18697-2023
                                 Decided on: 07.07.2023

Shubham Kathuria                                                      .... Petitioner


                                     Versus
State of Punjab                                                      ... Respondent

CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:    Mr. P.S. Hundal, Senior Advocate assisted by
            Mr. Vikramjeet Singh, Advocate
            for the petitioner.

            Mr. Rajiv Verma, DAG, Punjab.

            ***

JASGURPREET SINGH PURI, J. (ORAL)

1. The present is the second petition filed under Section 439 of the

Code of Criminal Procedure for grant of regular bail to the petitioner in case

FIR No.73 dated 06.05.2021, under Sections 22-C/29/61/85 of the NDPS Act,

registered at Police Station Sangat, District Bathinda.

2. It has been submitted by learned Senior Counsel for the petitioner

that the petitioner is in custody since 23.02.2022, which is 1 year, 4 months

and 9 days and the confiscated quantity in the present case was 15000 tablets

of Celcidal 100 SR and 25 vials of Biorex which was recovered from two of

the co-accused, namely, Sagar and Aman Kumar. He further submitted that the

co-accused, namely, Sukhpal Singh has since been released on regular bail by

this Court in CRM-M-3716-2022 vide order dated 13.09.2022 (Annexure P-4)

especially on the ground that his name was nominated on the basis of

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disclosure statement of the aforesaid co-accused. Learned Senior Counsel

further submitted that so far as the present petitioner is concerned, his name

was also nominated on the basis of the disclosure statement of the co-accused

and no recovery was effected from him. He also referred to the judgment

passed by the Hon'ble Supreme Court in "Tofan Singh Vs. State of Tamil

Nadu", 2021(1) RCR (Criminal) 1, to contend that the disclosure statement of

the co-accused is per se not admissible in evidence and it is a case where there

is no sufficient evidence available with the police to connect the petitioner

with the present offence and it was only on the basis of disclosure statement of

the co-accused, the petitioner was nominated. He submitted that even

otherwise also no recovery has been effected from the petitioner and he has

already faced incarceration for 1 year, 4 months and 9 days, therefore, he may

be considered for the grant of regular bail.

3. On the other hand, Mr. Rajiv Verma, DAG, Punjab, has submitted

that it is correct that the petitioner is in custody from 1 year, 4 months and 9

days and no recovery has been effected from the petitioner, but it was effected

from the other co-accused, on whose disclosure statement, the name of the

petitioner was nominated. He has opposed the grant of regular bail to the

petitioner on the ground that the recovery from the co-accused falls in the

category of commercial quantity under the NDPS Act, therefore, the prayer of

the petitioner is hit by the bar contained under Section 37 of the NDPS Act.

4. I have heard the learned counsel for the parties.

5. It is a case where the petitioner has already faced incarceration for

1 year, 4 months and 9 days and as per the learned State counsel, 1 out 18

witnesses has been examined. No recovery has been effected from the

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petitioner and his name was nominated on the basis of disclosure statement of

the co-accused. The other co-accused, namely, Sukhpal Singh, who was also

nominated on the basis of the disclosure statement of the co-accused, has been

admitted to regular bail by this Court vide Annexure P-4. Since the recovery

was not effected from the petitioner, therefore, rigors of Section 37 of the

NDPS Act will not apply in the present case qua the present petitioner.

Furthermore, it is neither the case of the State nor it has been argued by the

learned State counsel that in case the petitioner is released on bail then he may

abscond or flee from justice or may influence the witness or may tamper with

the evidence.

6. Therefore, considering the aforesaid facts and circumstances of the

present case and also considering the long custody of the petitioner, which is

about 1 year, 4 months and 9 days, this Court deems it fit and proper to grant

regular bail to the petitioner. Consequently, the present petition is allowed and

the petitioner is ordered to be released on regular bail on furnishing bail

bond/surety bond to the satisfaction of the trial Court/Duty Magistrate

concerned, if not required in any other case.

7. However, anything observed hereinabove shall not be treated as

an expression of opinion on merits of the case and is meant only for the

purpose of decision of present petition.

07.07.2023                               (JASGURPREET SINGH PURI)
Bhumika                                        JUDGE
             1. Whether speaking/reasoned:       Yes/No
             2. Whether reportable:              Yes/No




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