Ashwani Kumar vs State Of Haryana
2024 Latest Caselaw 2182 P&H

Punjab-Haryana High Court

Ashwani Kumar vs State Of Haryana on 1 February, 2024

Author: Pankaj Jain

Bench: Pankaj Jain

                                                            Neutral Citation No:=2024:PHHC:013788




CRM-M No.37977 of 2023 (O&M)                   ::1::      2024:PHHC:013788


221   IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                                 CRM-M No.37977 of 2023 (O&M)
                                 Date of decision : 01.02.2024

Ashwani Kumar                                          ...... Petitioner

                          versus

State of Haryana                                       ...... Respondent

CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN
            ***

Present :-   Mr. Navkiran Singh, Advocate
             for the petitioner.

             Mr. Ashok Kumar Sehrawat, DAG, Haryana

                   ***

PANKAJ JAIN, J. (ORAL)

1 This 4th petition has been filed under Section 439 Cr.P.C. for

grant of regular bail in case F.I.R. No.511 dated 30.06.2021 registered under

Sections 20(C), 25 of the NDPS Act at Police Station City Karnal, District

Karnal.

2 Custody certificate by way of affidavit of Shailakshi Bhardwaj,

Deputy Superintendent of Police, District Prison (Karnal), Haryana on

behalf of State has been filed. The same is taken on record.

3 Learned counsel for the petitioner submits that the petitioner is

behind bars for more than 2 years, 6 months & 29 days. The trial is

proceeding at snail's pace and is not expected to conclude in the near future.

He submits that as per settled law, keeping in view the prolonged custody,

the petitioner shall be entitled for bail dehors the rigors of Section 37 of the

NDPS Act. He further relies upon order passed by Apex Court in the case

of Rabi Prakash Vs. The State of Odisha passed in Special Leave to

1 of 6

Neutral Citation No:=2024:PHHC:013788

CRM-M No.37977 of 2023 (O&M) ::2:: 2024:PHHC:013788

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."

4 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.

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

5 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

2 of 6

Neutral Citation No:=2024:PHHC:013788

CRM-M No.37977 of 2023 (O&M) ::3:: 2024:PHHC:013788

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.

6 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 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

3 of 6

Neutral Citation No:=2024:PHHC:013788

CRM-M No.37977 of 2023 (O&M) ::4:: 2024:PHHC:013788

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

7 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:

(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."

8 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: -

4 of 6

Neutral Citation No:=2024:PHHC:013788

CRM-M No.37977 of 2023 (O&M) ::5:: 2024:PHHC:013788

"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."

9 Learned State counsel is not in a position to dispute the

aforementioned factual assertions based on record.

10 I have heard learned counsel for the parties and have gone

through the records of the case.

11 Without commenting on the merits of the case and considering

the incarceration suffered by the petitioner, the 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.

5 of 6

Neutral Citation No:=2024:PHHC:013788

CRM-M No.37977 of 2023 (O&M) ::6:: 2024:PHHC:013788

(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 while on bail.

(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.

12 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.

13 Ordered accordingly.

14 Needless to say that anything observed herein shall not be

construed to be an opinion on the merits of the case.

                                                          ( PANKAJ JAIN )
                                                               JUDGE
01.02.2024
Pooja sharma-I

                      Whether speaking/reasoned           Yes
                      Whether Reportable :                No




                                                                Neutral Citation No:=2024:PHHC:013788

                                         6 of 6