Moujdin vs State Of Punjab
2023 Latest Caselaw 19925 P&H

                                                      Neutral Citation No:=2023:PHHC:146395




CRM-M-56571-2023                     [1]                2023:PHHC:146395



212
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                                  CRM-M-56571-2023
                                                  Date of decision: 17.11.2023

Moujdin

                                                                          ...Petitioner

                                         Versus

State of Punjab

                                                                       ...Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:     Ms. Swati Verma, Advocate for the petitioner.

             Mr. Kunal Muthreja, AAG, Punjab.

             ****

VIKAS BAHL, J. (ORAL)

1. This is the fifth petition filed under Section 439 Cr.P.C for

grant of regular bail to the petitioner in FIR No.25 dated 06.03.2022

registered under Sections 21(c) and 29 of the NDPS Act, 1985, at Police

Station Dhariwal, District Gurdaspur.

2. Learned counsel for the petitioner has submitted that the

petitioner is in custody since 06.03.2022 and the investigation is complete

and challan has been presented and there are 12 prosecution witnesses, out

of which, 3 witnesses have been given up and none have been examined and

the conclusion of trial is likely to take time. It is further submitted that the

last bail application of the petitioner was dismissed as withdrawn at that

stage on 04.08.2023 but has submitted that since, no witnesses have been

1 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [2] 2023:PHHC:146395

examined thus, the conclusion of trial is likely to take time. It is contended

that any 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 custody, 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. Narcotic Control Bureau".

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 recovery from the present petitioner and other co-accused persons is of

commercial quantity and thus, the bar under Section 37 of the NDPS Act

would apply in the present case and thus, the petitioner does not deserve the

concession of regular bail.

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

gone through the paper-book.

5. Hon'ble the Supreme Court vide 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, had 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

2 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [3] 2023:PHHC:146395

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 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."

A perusal of the same would show that in the abovesaid case,

the custody of the accused was 1 year and 4 months and while taking into

consideration the fact that investigation has been completed as well as that

the conclusion of trial would take time, the Hon'ble Supreme Court was

pleased to grant the concession of regular bail to the petitioners therein.

6. 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

3 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [4] 2023:PHHC:146395

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:

(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

4 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [5] 2023:PHHC:146395

and participation of the appellant in the pending trial. With the aforesaid directions, the appeal stands allowed."

7. 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."

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 said

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.

8. In another case i.e., Criminal Appeal No.1169 of 2022 titled as

5 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [6] 2023:PHHC:146395

"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 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."

6 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [7] 2023:PHHC:146395

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).

9. 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 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

7 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [8] 2023:PHHC:146395

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 and the provision 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.

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

11. 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.

12. In the present case, the petitioner is in custody since 06.03.2022

and the investigation is complete and challan has been presented and out of

8 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [9] 2023:PHHC:146395

12 prosecution witnesses, 3 witnesses have been given up and none have

been examined and thus, the conclusion of trial is likely to take time and

keeping the petitioner in further incarceration would be violative of his right

enshrined under Article 21 of the Constitution of India.

13. 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.

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.

14. In case of breach of any of the above conditions, the

9 of 10

Neutral Citation No:=2023:PHHC:146395

CRM-M-56571-2023 [10] 2023:PHHC:146395

prosecution shall be at liberty to move an application for cancellation of bail

before this Court.

15. 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.

17.11.2023                                            (VIKAS BAHL)
Pawan                                                    JUDGE


             Whether speaking/reasoned:-              Yes/No

             Whether reportable:-                     Yes/No

Neutral Citation No:=2023:PHHC:146395

10 of 10