Punjab-Haryana High Court
Sher Singh vs State Of Haryana on 5 July, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:083454
CRM-M-29921-2024 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
CRM-M-29921-2024
Date of decision : 05.07.2024
Sher Singh
... Petitioner
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR.JUSTICE VIKAS BAHL
Present: Mr.Sandeep Saini, Advocate
for the petitioner.
Mr.Samarth Sagar, Addl.A.G. Haryana (through V.C.).
VIKAS BAHL, J.(ORAL)
1. This is the 4th petition under Section 439 Cr.P.C. for grant of
regular bail to the petitioner in FIR no.64 dated 21.05.2020 registered under
Sections 21/22/29-61-85 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as "NDPS Act") at Police
Station Panjokhra, District Ambala, Haryana.
2. Learned counsel for the petitioner has submitted that the
petitioner has been in custody since 21.05.2020 (more than 4 years and 1
month). It is submitted that the last bail application of the petitioner was
withdrawn on 17.11.2023 and since then sufficient time has already elapsed
and yet the trial has not concluded. It is further submitted that recovery has
already been effected from the petitioner and the petitioner is not involved
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in any other case. Learned counsel for the petitioner has relied upon the
judgment of the Hon'ble Supreme Court passed in case titled as Parvinder
Singh Vs. State of Punjab, reported as 2003(12) SCC 615, in support of his
argument with regard to maintainability of the second regular bail
application after the dismissal of the first. He has further relied upon the
judgment passed by the Rajasthan High Court (Jaipur Bench) (Full Bench)
in case titled as Ganesh Raj Vs. State of Rajasthan and others reported as
2005(3) RCR (Criminal) 30, to contend that a speedy trial is a
constitutional right of the accused provided to him under Article 21 of the
Constitution of India and in case, the first regular bail application is
dismissed on merits and trial is being delayed then, the petitioner would
have the right to file a second bail application on account of delayed trial.
Learned counsel for the petitioner has also relied upon an order dated
12.01.2022 passed by the Division Bench of this Court in CRM-3773-2019
in CRA-D-198-DB-2017 titled as Bhupender Singh Vs. Narcotic Control
Bureau, order dated 22.08.2022 passed by the Hon'ble Supreme Court in
Special Leave to Appeal (Crl.) No.5530-2022 titled as "Mohammad
Salman Hanif Shaikh Vs. The State of Gujarat, 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", order
dated 05.08.2022 passed by the Hon'ble Supreme Court in Criminal Appeal
No.1169 of 2022 titled as "Gopal Krishna Patra @ Gopalrusma Vs. Union
of India,", order dated 01.08.2022 passed by the Hon'ble Supreme Court in
Special Leave to Appeal (Crl.) No.5769/2022 titled as "Nitish Adhikary @
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Bapan Vs. The State of West Bengal", in support of his arguments that on
the basis of long custody alone, the petitioner deserves the concession of
regular bail.
3. Learned State counsel, on the other hand, has opposed the
present petition for regular bail and has submitted that the recovery effected
from the petitioner falls within commercial quantity and thus, the bar under
Section 37 of the NDPS Act would apply. It is submitted that the first bail
application of the petitioner as well as second bail application of the
petitioner were dismissed on merits vide orders dated 14.01.2021 and
27.05.2022 and thus, the present petition for regular bail is not
maintainable. Other facts have, however, not been disputed.
4. This Court has heard the learned counsel for the parties and
has perused the paper book.
5. The Hon'ble Supreme Court in Parvinder Singh's case (Supra)
has held as under:-
"2. In Criminal Appeal No.57-DB of 2001 an application for grant
of bail was filed by the appellant being Criminal Miscellaneous No.
53713 of 2002. The bail application has not been examined on merits
and has been dismissed holding that it is not maintainable, as
against an earlier order of the High Court rejecting bail, a special
leave petition was filed before this Court which was dismissed as
withdrawn. The second ground stated in the impugned order is that
the bail application has been rejected on three earlier occasions. The
fact that earlier bail application was rejected and the special leave
petition was dismissed as withdrawn would not make the fresh bail
application legally not maintainable. The High Court can always
consider fresh circumstances and subsequent events. The same would
be the position regarding the earlier rejections. In this view, we are
unable to sustain the impugned order dated 7th January, 2003. The
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bail application (Criminal Miscellaneous No. 53713 of 2002) shall
be decided afresh on merits. We request the High Court to decide the
application before the close of the court for winter vacation.
3. The appeal is disposed of accordingly."
A perusal of the above judgment would show that it was
observed by the Hon'ble Supreme Court that even in case, the earlier bail
application of the accused was rejected and the SLP against the same was
dismissed as withdrawn, the same would not make the fresh bail application
legally not maintainable and the Hon'ble Court can consider the subsequent
bail application after taking into account fresh circumstances and
subsequent events.
6. Hon'ble Full Bench of Rajasthan High Court in Ganesh Raj's
case (Supra) has held has under:-
"Speedy trial is a Constitutional right of the accused provided to him
by Article 21 the Constitution. If first application of the accused who
is in custody is dismissed on merits and the trial is delayed, the
accused has a right to make second bail application on the ground of
delayed trial Section 439 to Constitutional right of the accused
whereas Section 438 his statutory right. The provisions of Section
438 should not be put to abuse at the instance of unscrupulous
accused."
A perusal of above judgment would show that it has been
observed that speedy trial is a constitutional right of the accused provided to
him under Article 21 of the Constitution of India and in case, the accused is
in custody and his first bail application was dismissed on merits and the trial
is being delayed, then, the accused has a right to file a second bail
application on the ground of delayed trial. It was further observed that
Section 439 relates to the constitutional right of the accused.
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7. The Hon'ble Supreme Court in Mohammad Salman Hanif
Shaikh's case (Supra), 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."
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 Hon'ble 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.
8. Hon'ble Supreme Court in Chitta Biswas Alias Subhas's case
(Supra) 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
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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."
9. In Gopal Krishna Patra @ Gopalrusma's case (Supra), 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
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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 also the custody was of approximately 2 years, 1 month and 17 days
and the case was under the NDPS Act, 1985 and primarily, considering the
length of the custody period, concession of bail was granted to the petitioner
(therein).
10. The Hon'ble Supreme Court of India in Nitish Adhikary @
Bapan's case (Supra) 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
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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, 1985 and the provisions of Section 37 of the
NDPS Act, 1985 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.
11. The Division Bench of this Court in Bhupender Singh'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 in view
of the custody period, then he deserves the concession of regular bail, even
in the face of rigors of Section 37 of the NDPS Act, 1985.
12. In the present case, the petitioner has been in custody since
21.05.2020 (more than 4 years and 1 month) and the trial has not yet
concluded as 3 witnesses are yet to be examined. The investigation is
complete and the challan has been presented and nothing further is to be
recovered from the petitioner and the petitioner is stated to be not involved
in any other case. The first bail application of the petitioner was dismissed
on 14.01.2021 and the second bail application of the petitioner was
dismissed on 27.05.2022 and after dismissal of the said bail applications on
merits, substantial period has further elapsed and the petitioner has
remained in incarceration and in view of the law laid down in the above said
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judgments, the petitioner is, thus, entitled to file the present bail application.
Keeping the petitioner in further incarceration would be violative of the
right of the petitioner enshrined under Article 21 of the Constitution of
India.
13. Keeping in view the abovesaid facts and circumstances as also
the law laid down in the abovecited judgments, this Court deems it
appropriate to grant the concession of regular bail to the petitioner. Further,
this Court proposes to impose such conditions that would meet the object of
Section 37 of the NDPS Act, 1985.
14. Accordingly, the present petition is allowed and the petitioner
is ordered to be released on regular bail on his furnishing bail/surety bonds
to the satisfaction of the trial Court/Duty Magistrate, subject to him not
being required in any other case. The petitioner shall also abide by the
following conditions:-
1. The petitioner will not tamper with the evidence during
the trial.
2. The petitioner will not pressurize/intimidate the
prosecution witness(s).
3. The petitioner will appear before the trial Court on the
date fixed, unless personal presence is exempted.
4. The petitioner shall not commit an offence similar to the
offence of which he is an accused, or for commission of
which he is suspected.
5. The petitioner shall not directly or indirectly make any
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inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him/her from
disclosing such facts to the Court or to any police officer
or tamper with the evidence.
15. 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.
16. However, nothing stated above shall be construed as an
expression of opinion on the merits of the case and the trial would proceed
independently of the observations made in the present case which are only
for the purpose of adjudicating the present bail application.
(VIKAS BAHL)
JUDGE
July 05, 2024
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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