Punjab-Haryana High Court
Anwar Masih vs State Of Punjab on 5 September, 2023
Neutral Citation No:=2023:PHHC:116533
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232
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CRM-M-43218-2023
Date of Decision:-05.09.2023
ANWAR MASIH
......Petitioner.
Vs.
STATE OF PUNJAB
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. J.S. Sandhu, Advocate
for the petitioner.
Ms. Ramta K Choudhary, DAG, Punjab.
***
JASJIT SINGH BEDI, J.
The prayer in the present petition under Section 439 Cr.P.C. is
for the grant of regular bail in case bearing FIR No.147 dated 22.11.2020
registered under Section 22 of NDPS Act, 1985 at Police Station Sadar
Abohar, District Fazilka, Punjab.
2. The brief facts of the case are that while the police party was on
patrolling duty and present at Village Sadewala, then a secret informer
informed the party that Munish Masih (granted bail vide order dated
06.02.2023 passed in CRM-M-31504-2022) and Anwar Masih (petitioner)
who were in the possession of one Trolla bearing NoPB05V-0779 were in
the habit of selling intoxicating tablets after getting them on cheap rates
from Rajasthan and would sell them at higher rates in Punjab. They would
be coming from Ganga Nagar towards Abohar after loading the intoxicating
tablets in the trolla and if a Nakabandi was set up, they could be
apprehended along with the intoxicating tablets.
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Based on the said information, an FIR was registered and
a Nakabandi was set up. Thereafter, the search of the truck lead to the
recovery of 10,000 tablets make Corlividol-100 SR.
3. The learned counsel for the petitioner contends that the
petitioner has been falsely implicated in the present case. No independent
witness or any Gazetted Officer or Magistrate was joined in the police party.
The mandatory provisions of Sections 42, 50 and 52 of NDPS Act have not
been complied with. Since the petitioner was in custody since 22.11.2020
and was a first-time offender, he was entitled to the concession of regular
bail keeping in view the judgment of the Hon'ble Supreme Court in the case
of Nitish Adhikary @ Bapan Versus The State of West Bengal, SLP (Crl.)
Nos.5769/2022 arising out of judgment and order dated 04.05.2022 in
CRM(NDPS) No.442/2022, decided on 01.08.2022 and Hasanujjaman &
others Versus The State of West Bengal, SLP (Crl.) No.(s).3221/2023
arising out of impugned final judgment and order dated 29.11.2022 in
CRM(NDPS) No.1323/2022, decided on 04.05.2023.
4. On the other hand, the learned State counsel contends that
commercial quantity of contraband has been recovered from the petitioner.
02 out of the 13 prosecution witnesses already stand examined. Therefore,
the petitioner was not entitled to the grant of regular bail. She, however, does
not dispute the custody period undergone by the petitioner as also the fact
that the petitioner is a first-time offender.
5. I have heard the learned counsel for the parties.
6. The Hon'ble Supreme Court in the case of Nitish Adhikary @
Bapan Vs. The State of West Bengal SLP (Crl.) Nos.5769/2022 Decided on
01.08.2022 held 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 2 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."
7. In Hasanujjaman & others Versus The State of West Bengal,
SLP (Crl.) No.(s).3221/2023, decided on 04.05.2023, held as under:-
"1. There are three petitioners in this Special Leave
Petition, who were accused of committing an offence under
Sections 21(c)/29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, `NDPS Act') in FIR
No.18/2022, dated 09.01.2022, registered at Police Station
Islampur, District Murshidabad, West Bengal.
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2. The allegations are that when the police party
intercepted the petitioners along with another person riding
on two motorcycles, they were found in possession of
codeine phosphate in a consignment of phensedyl bottles
loaded in two nylon bags. During the search, 115 bottles
(100 ml. each) of phensedyl were recovered from the joint
possession of the petitioners. 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.
(emphasis supplied)
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8. In the present case, the petitioner is a first-time offender and in
custody since 22.11.2020. Only 02 out of the 13 prosecution witnesses have
been examined so far. As such, the Trial of the present case is not likely to be
concluded anytime soon. In view of the delayed Trial, the rigors of Section
37 of the NDPS Act can be diluted to an extent and the petitioner can be
granted bail keeping in mind the right to a speedy Trial as envisaged under
Article 21 of the Constitution of India moreso as his similarly situated co-
accused has been granted the same concession.
9. Thus without commenting on the merits of the case, the present
petition is allowed and the petitioner-Anwar Masih son of Ghulla is ordered
to be released on bail subject to his furnishing bail bonds and surety bonds to
the satisfaction of learned CJM/Duty Magistrate, concerned.
10. The petitioner shall appear before the police station concerned
on the first Monday of every month till the conclusion of the trial and inform
in writing each time that he is not involved in any other crime other than the
present case.
11. In addition, the petitioner (or anyone on his behalf) shall
prepare an FDR in the sum of Rs.1,00,000/- and deposit the same with the
Trial Court. The same would be liable to be forfeited as per law in case of
the absence of the petitioner from trial without sufficient cause.
12. The petition stands disposed of.
( JASJIT SINGH BEDI )
JUDGE
05.09.2023
JITESH
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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