Punjab-Haryana High Court
Varinder Kumar Alias Sonu vs State Of Punjab on 2 June, 2023
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -1- 2023:PHHC:081324
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(203)
CRM-M-27292-2023
Date of decision: - 02.06.2023
Varinder Kumar alias Sonu
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Vishal Kumar, Advocate,
for the petitioner.
Mr. Rohit Ahuja, DAG, Punjab.
****
VIKAS BAHL, J. (ORAL)
1. This is a second petition under Section 439 Cr.P.C. for grant
of regular bail to the petitioner in FIR No.19 dated 27.01.2020, registered
under Section 21/61/85 of the Narcotic Drugs and Psychotropic
Substances Act 1985 (in short "NDPS Act"), at Police Station STF,
Phase-4, District SAS Nagar, Mohali.
2. Learned counsel for the petitioner has submitted that the
petitioner is in custody since 27.01.2020 (more than 3 years and 4
months) and investigation is complete, challan has been presented and
there are 11 witnesses, out of which, only two witnesses have been
examined till date and thus, the conclusion of trial is likely to take time. It
is further submitted that the previous bail application of the petitioner was
withdrawn on 29.08.2022 and thereafter, sufficient period of time has
1 of 8
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -2- 2023:PHHC:081324
lapsed and yet the trial has not been concluded and thus, the same entitles
the petitioner to file the present petition. It is further submitted that
further incarceration of the petitioner 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 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.
3. On the other hand, learned State Counsel 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 thus, the petitioner does not deserve the
concession of regular bail. It has further submitted that out of total 11
2 of 8
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -3- 2023:PHHC:081324
prosecution witnesses, two have been examined and two have been given
up and that the petitioner is involved in one more FIR.
4. Learned counsel for the petitioner, in rebuttal to the
abovesaid arguments, has submitted that the petitioner is on bail in the
said case and has relied upon the judgment of Hon'ble Supreme Court in
"Maulana Mohd. Amir Rashadi vs. State of U.P. and another", reported
as 2012 (2) SCC 382 to contend that the facts and circumstances of the
present case are to be seen and the bail application of the petitioner cannot
be rejected solely on the ground that the petitioner is involved in another
case. The relevant portion of the said judgment is reproduced
hereinbelow:-
"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."
5. This Court has heard the learned counsel for the parties and
has perused the paper book.
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.
3 of 8
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -4- 2023:PHHC:081324
Pending application(s), if any, shall also stand disposed of."
The above-said case was also 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 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 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.
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:
4 of 8
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -5- 2023:PHHC:081324
(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 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.
(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."
5 of 8
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -6- 2023:PHHC:081324
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, 1985 and primarily, considering
the length of the custody period, 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 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
6 of 8
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -7- 2023:PHHC:081324
granted primarily by considering the petitioner (therein) had undergone
custody for a period of 01 year and 07 months and only one witness had
been examined.
10. The 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 out a case within the parameters of Article 21 of the
Constitution of India in view 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 is in custody since
27.01.2020 (more than 3 years and 4 months) and investigation is
complete, challan has been presented and there are 11 witnesses, out of
which, only seven witnesses are yet to be examined and thus, the
conclusion of trial is likely to take time 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 as
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
7 of 8
Neutral Citation No:=2023:PHHC:081324
CRM-M-27292-2023 -8- 2023:PHHC:081324
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
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. However, 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 )
June 02, 2023 JUDGE
naresh.k
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
Neutral Citation No:=2023:PHHC:081324
8 of 8
