Pappu Singh vs State Of Punjab
2023 Latest Caselaw 16396 P&H

                                                      Neutral Citation No:=2023:PHHC:124636




CRM-M-46582-2023                                                                1

                                                         2023:PHHC:124636

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

228                                       CRM-M-46582-2023
                                          Date of decision : 21.09.2023

Pappu Singh                                                   ...... Petitioner

                                versus

State of Punjab                                             ...... Respondent

CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN

Present:    Mr. Charan Jit Sharma, Advocate
            for the petitioner.

            Mr. Amit Shukla, AAG, Punjab.

                    ****

PANKAJ JAIN, J. (Oral)

1. Present petition has been filed under Section 439 Cr.P.C.

for grant of regular bail to the petitioner in case bearing FIR No.49

dated 06.03.2022, registered for the offences punishable under Section

22 (c) of NDPS Act, 1985 at Police Station Sri Muktsar Sahib.

2. As per the case of the prosecution, during search, the

petitioner and his co-accused (since died) were found to be in

possession of 1500 tablets of Colovidol-100 SR containing salt

Tramadol Hydrochloride which they were carrying without permit or

license.

3. Petitioner is stated to be behind bars for more than 01 year,

06 months and 14 days. Out of 18 cited witnesses, none has been

examined so far. No other case is pending against the petitioner.

4. Learned counsel for the petitioner relies upon order passed

by Apex Court in the case of Rabi Prakash Vs. The State of Odisha

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passed in Special Leave to Appeal (Crl.) No(s). 4169 of 2023 decided

on 13.07.2023 wherein it has been held as under :-

"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

5. Earlier to Rabi Prakash's case (supra) also Apex Court

has consistently held that the prolonged incarceration has to be

considered dehors bar contained under Section 37 of the NDPS Act.

The Supreme Court in order dated 22.08.2022 passed by the Supreme

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

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

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Pending application(s), if any, shall also stand disposed of."

6. 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 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. Supreme Court in 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" 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

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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 order dated 05.08.2022 passed by the Supreme Court in

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

Gopalrusma vs. Union of India," the 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:

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(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."

9. In order dated 01.08.2022 passed by the Supreme Court in

Special Leave to Appeal (Crl.) No.5769/2022 titled as "Nitish

Adhikary @ Bapan Vs. The State of West Bengal" Supreme Court 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.

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Pending application(s), if any, shall stand disposed of."

10. Similarly, the Supreme Court in Gopal Krishna Patra @

Gopalrusma's case (supra) ordered as under :-

"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, 19851.

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."

11. The Supreme Court in Chitta Biswas @ Subhas's case

(supra) ordered as under :-

"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."

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12. The Supreme Court in another judgment passed in

Mohammad Salman Hanif's case (supra) ordered as under :-

"The petitioner seeks enlargement on regular bail in the case FIR being C.R.No.NDPS/11192015200884/2020 registered at Changodar Police Station, District Ahmedabad (Rural) for the offences punishable under Sections 8(c), 21(c) and 29 of the NDPS Act.

As per the allegations, 358 bottles of cough syrup containing codein of 'commercial quantity' was recovered from the petitioner.

We have heard learned counsels for the parties and are of the considered opinion that the questions like whether the contraband recovered from the petitioner is of 'commercial quantity' or whether codein phosphate is a manufactured drug or a narcotic substance, need not be go into at this stage.

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."

13. Division Bench of this Court in Bhupender Singh vs.

Narcotic Control Bureau, (2022) 2 RCR (Criminal) 706 after

considering issue with respect to achieving balance between right to

speedy trial guaranteed under Article 21 of the Constitution of India

and the rigors enumerated under Section 37 of the Act held that

convict/accused is not precluded from claiming bail invoking

parameters of Article 21 of the Constitution of India dehors the

stringent provisions of Section 37 of the Act.

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14. Right to speedy trial is one of the objectives of NDPS Act

and is rather one of the checks and balances provided under the Act.

Section 36 of the NDPS Act recognizes the need for speedy trial. The

constitution of Special Courts is means to achieve the said objective of

speedy trial. It is only with an objective to synthesize the right to

speedy trial and rigors of Section 37 that the Supreme Court in the

afore-referred cases granted concession of regular bail to the under-

trials merely on the basis of long incarceration that they have suffered

owing to delay in trial.

15. Having heard counsel for the parties and after going

through records of the case without commenting on the merits, this

Court finds that keeping in view incarceration suffered by the

petitioner, present petition is allowed. The petitioner is ordered to be

released on bail on his furnishing bail/surety bonds to the satisfaction of

the Ld. Trial Court/Duty Magistrate, concerned. However, in addition

to conditions that may be imposed by the Trial Court/Duty Magistrate

concerned, the petitioner shall remain bound by the following

conditions :-

(i) The petitioner shall not mis-use the liberty granted.

(ii) The petitioner shall not tamper with any evidence oral or documentary during the trial.

(iii) The petitioner shall not absent himself on any date before the trial.

(iv) The petitioner shall not commit any offence similar to the one alleged in the present case.

(v) The petitioner shall deposit his passport, if any with the trial Court.

(vi) The petitioner shall give his cellphone number to the police authorities and shall not change his cell-phone number without permission of the trial Court.

(vii) The petitioner shall not in any manner try to delay the trial.

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16. In case of breach of any of the aforesaid conditions and

those which may be imposed by the Trial Court, the prosecution shall

be at liberty to move cancellation of bail of the petitioner.

17. Ordered accordingly.

                                                (PANKAJ JAIN)
                                                    JUDGE
21.09.2023
Dinesh
                   Whether speaking/reasoned :               Yes

                   Whether Reportable :                      No

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