Punjab-Haryana High Court

Sikander @ Bodi vs State Of Haryana on 1 June, 2023

                                                   Neutral Citation No:=2023:PHHC:080429




CRM-M-26814-2023                        1            2023:PHHC:080429

      IN THE HIGH COURT OF PUNJAB & HARYANA AT
                   CHANDIGARH
                      ***

CRM-M-26814-2023 Date of decision : 01.06.2023

Sikander @ Bodi

... Petitioner

Versus

State of Haryana

... Respondent

CORAM: HON'BLE MR.JUSTICE VIKAS BAHL

Present: Mr.Kamaldeep Singh Redhu, Advocate for the petitioner.

Ms.Upasana Dhawan, AAG, Haryana.

VIKAS BAHL, J.(ORAL)

1. This is the fourth petition under Section 439 Cr.P.C. for grant

of regular bail to the petitioner in FIR no.0296 dated 05.06.2021 registered

under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act

1985 (in short "NDPS Act") (Sections 20(ii)(c), 25, 27A, 29 of the NDPS

Act added later on) at Police Station Kaithal City, District Kaithal.

2. Learned counsel for the petitioner has submitted that the

petitioner has been in custody since 05.06.2021 and the investigation is

complete and the challan has already been presented and there are 30

witnesses, out of which, none have been examined and thus, the trial is

likely to take time and the petitioner is not involved in any other case. It is

further submitted that the last bail petition of the petitioner was dismissed as

withdrawn on 09.02.2023 at that stage and the bail petition prior to that was

withdrawn on 29.07.2022 and direction was given to the trial Court to

expedite the trial but despite the passing of the said order, no witness has

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been examined. It is stated that further incarceration of the petitioner would

be violative of the right of the petitioner enshrined under Article 21 of the

Constitution of India.

3. Learned counsel for the petitioner has relied upon an order

dated 12.01.2022 passed by the Hon'ble Division Bench of this Court in

CRM-3773-2019 in CRA-D-198-DB-2017 titled as Bhupender Singh Vs.

Narcotic Control Bureau, order dated 22.08.2022 passed by the Hon'ble

Supreme Court in Special Leave to Appeal (Crl.) No.5530-2022 titled as

"Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, order dated

07.02.2020 passed by the Hon'ble Supreme Court in Criminal Appeal

No.245/2020 titled as "Chitta Biswas Alias Subhas Vs. The State of West

Bengal", order dated 05.08.2022 passed by the Hon'ble Supreme Court in

Criminal Appeal No.1169 of 2022 titled as "Gopal Krishna Patra @

Gopalrusma Vs. Union of India,", order dated 01.08.2022 passed by the

Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.5769/2022

titled as "Nitish Adhikary @ Bapan Vs. The State of West Bengal", in

support of his arguments to the effect that on the basis of long custody

alone, the petitioner deserves the concession of regular bail.

4. Learned State Counsel, on the other hand, has opposed the

present petition for grant of regular bail to the petitioner and has submitted

that the recovery effected in the present case falls within the ambit of

commercial quantity and the petitioner has been apprehended at the spot,

thus, the petitioner does not deserve the concession of regular bail.

However, she has not disputed the custody period of the petitioner as has

been stated by learned counsel for the petitioner.

5. This Court has heard learned counsel for the parties and

perused the paper book.

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6. The Hon'ble Supreme Court in Mohammad Salman Hanif

Shaikh's case (Supra), had held 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."

The above-said case was a case under the NDPS Act, 1985 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 granted to the petitioner

(therein) only on the ground that he had spent about two years in custody

and that the conclusion of trial will take some time.

7. Hon'ble Supreme Court in Chitta Biswas Alias Subhas's case

(Supra) was pleased to grant concession of bail to the petitioner (therein) in

a case where the custody of the petitioner therein 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.

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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 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."

8. In Gopal Krishna Patra @ Gopalrusma's case (Supra), 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

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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 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.

(d) Any infraction shall entail in withdrawal of the benefit granted by this Order.

The appeal is allowed in aforesaid terms." A perusal of the above-said order would show that in the said

case, the custody was of approximately 2 years, 1 month and 17 days and

the case was under the NDPS Act, 1985 and after primarily considering the

length of the custody period of the petitioner therein, concession of bail was

granted to the petitioner (therein).

9. The Hon'ble Supreme Court of India in Nitish Adhikary @

Bapan's case (Supra) has observed as under: -

"As per the office report dated 29.07.2022, copy of the show cause notice along with Special Leave Petition

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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 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."

A perusal of the said order would also show that the said case

was under the NDPS Act, 1985 and the provision of Section 37 of the

NDPS Act, 1985 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 that only one witness had been

examined.

10. Hon'ble Division Bench of this Court in Bhupender Singh's

case (Supra), had also held that in case, the accused person is able to make

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out a case within the parameters of Article 21 of the Constitution of India in

view of the length of the custody period, then he deserves the concession of

regular bail, even in the face of rigors of Section 37 of the NDPS Act, 1985.

11. In the present case, the petitioner has been in custody since

05.06.2021 and the investigation is complete and the challan has already

been presented and there are 30 witnesses, out of which, none have been

examined and thus, the trial is likely to take time and the petitioner is not

involved in any other case and further incarceration of the petitioner would

be violative of the right of the petitioner enshrined under Article 21 of the

Constitution of India.

12. Keeping in view the abovesaid facts and circumstances and

also the law laid down in the abovecited judgments, this Court deems it

appropriate to grant the concession of regular bail to the petitioner. Further,

this Court proposes to impose such conditions that would meet the object of

Section 37 of the NDPS Act, 1985.

13. Accordingly, 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 trial Court/Duty Magistrate, subject to him not

being required in any other case. The petitioner shall also abide by the

following conditions:-

1. The petitioner will not tamper with the evidence during the

trial.

2. The petitioner will not pressurize/intimidate the prosecution

witness(s).

3. The petitioner will appear before the trial Court on the date

fixed, unless personal presence is exempted.

4. The petitioner shall not commit an offence similar to the

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offence of which he is an accused, or for commission of which

he is suspected.

5. 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/her from disclosing

such facts to the Court or to any police officer or tamper with

the evidence.

14. 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.

15. Nothing stated above shall be construed as an expression of

opinion on the merits of the case and the trial would proceed independently

of the observations made in the present case which are only for the purpose

of adjudicating the present bail application.




                                                    (VIKAS BAHL)
                                                       JUDGE
June 01, 2023
Davinder Kumar

                 Whether speaking / reasoned                             Yes/No
                 Whether reportable                                      Yes/No

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