Punjab-Haryana High Court
Mahant Bhagat @ Munna vs State Of Punjab on 4 September, 2023
Neutral Citation No:=2023:PHHC:116113
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IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
CRM-M-42415-2023
Date of decision : 04.09.2023
Mahant Bhagat @ Munna
... Petitioner
Versus
State of Punjab ... Respondent
CORAM: HON'BLE MR.JUSTICE VIKAS BAHL
Present: Mr.Sachin Jain, Advocate for
Mr.Parveen Sharma, Advocate
for the petitioner.
Mr.Rohit Bansal, Sr.DAG, Punjab.
VIKAS BAHL, J.(ORAL)
1. This is the fifth petition under Section 439 Cr.P.C. for grant of
regular bail to the petitioner in FIR no.337 dated 17.11.2021 registered
under Sections 20 and 61 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as "NDPS Act") at Police
Station Derabassi, District Mohali.
2. Learned counsel for the petitioner has submitted that the
petitioner has been in custody since 17.11.2021 and the investigation is
complete and the challan has already been presented and out of 14
witnesses, only one witness has been examined and thus, the trial is likely to
take time. It is further submitted that the petitioner is not involved in any
other case and the last bail application of the petitioner was dismissed as
withdrawn on 11.08.2023 with liberty to file a fresh petition after giving full
and better particulars and the third bail application of the petitioner was
dismissed as withdrawn on 28.03.2023 and even thereafter sufficient time
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has elapsed and the trial has not made much progress. It is stated that in the
order dated 11.08.2023, learned State counsel, who had appeared on the
said date, had made a statement to the effect that 10 witnesses had been
examined but the same is not factually correct as only one witness has been
examined. It is further stated that keeping in view the length of the custody
of the petitioner, he deserves the concession of regular bail, as 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 the custody, the 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
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 the recovery effected from the petitioner falls within the category of
commercial quantity and thus, bar under Section 37 of the NDPS Act would
apply in the present case and he does not deserve the concession of regular
bail. Learned State counsel, on instructions from HC Balbir Singh, has
reiterated the fact that out of 14 witnesses, only one witness has been
examined.
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:-
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"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
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 and that the
conclusion of trial would take time, the Hon'ble Supreme Court was pleased
to grant regular bail to the petitioners therein.
6. The Hon'ble Supreme Court in case titled as "Mohammad
Salman Hanif Shaikh Vs. The State of Gujarat, vide order dated
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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.
7. 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
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 another case i.e., Criminal Appeal No.1169 of 2022 titled as
"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
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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."
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 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: -
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"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 and the provision of Section 37 of the NDPS Act
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 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
Singh's case (supra), had held that in case, the accused person is able to
make out a case within the parameters of Article 21 of the Constitution of
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India on the basis of long 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
had 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
17.11.2021 and the investigation is complete and challan has been presented
and out of 14 prosecution witnesses, only one witness has been examined as
yet and thus, the conclusion of trial is likely to take time. The petitioner is
stated to be not involved in any other case and thus, 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 local
surety and adequate 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).
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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
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.
(VIKAS BAHL)
JUDGE
September 04, 2023
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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