Punjab-Haryana High Court
Sahil Kanda vs State Of Punjab on 5 March, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:031824
CRM-M-15636-2023 (O&M) 1 2024:PHHC:031824
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-M-15636-2023 (O&M)
Date of Decision:05.03.2024
Sahil Kanda
......Petitioner
Versus
State of Punjab
......Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr.Sunil Chandha, Sr. Advocate with
Mr. Arjun Veer Sharma, Advocate for the petitioner.
Mr. Mohit Ahuja, DAG, Punjab.
*****
JASGURPREET SINGH PURI J.(Oral)
CRM-35986-2023
Present application has been filed for placing on record certain
documents.
Application is allowed as prayed for subject to all just exceptions.
The accompanying documents are taken on record as Annexures
P-5 and P-6.
Main case
1. The present is a second petition filed under Section 439 of the
Code of Criminal Procedure, for grant of regular bail to the petitioner in
case bearing FIR No.145 dated 25.08.2021 under Section 21 of Narcotic
Drugs and Psychotropic Substances Act, 1985 registered at Police Station
Special Task Force, District STF Wing, Mohali.
2. Learned Senior counsel for the petitioner submitted that the
petitioner is in custody since 25.08.2021, which is more than 02 years and
06 months. He further submitted that the trial of the case is not progressing
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because till now only 05 witnesses have been examined and 03 have been
given up. He further submitted that on 28.08.2023 this Court directed to
learned State Counsel to file an affidavit as to whether the provisions of
Section 42 of NDPS Act have been complied with or not in the present case
to which the State-respondent has filed an affidavit which is already on
record. While referring to the aforesaid affidavit which has been filed by
learned State counsel in which it has been so stated that the secret
information was received by one Munish Riat and he informed the same to
one Makhan Lal, who in turn reduced the information into writing and
thereafter the report was sent to the concerned DSP. He further submitted
that the procedure adopted by the police was not in accordance with
Section 42 of the NDPS Act because the person who had received the
information was required to have reduced the same in the form of writing.
In this regard learned Senior counsel for the petitioner has referred to a
judgement of Hon'ble Supreme Court in Directorate of Revenue & anr. vs.
Mohammed Nisar Holia 2008 (2) SCC 370 to contend that the person who
had received the information was bound to reduce the same in writing
Learned counsel for the petitioner also referred to a judgment of the
Hon'ble Supreme Court in Satender Kumar Antil Versus Central Bureau of
Investigation and another [2022 (10) SCC 51] and also a latest judgment of
the Hon'ble Supreme Court in Mohd. Muslim @ Hussain Versus State (NCT
of Delhi) [2023 AIR (SC) 1648] and contended that it is a clear cut case
where there is a deprivation of Right to Life guaranteed under Article 21 of
the Constitution of India.
3. Learned Senior counsel also submitted that even otherwise also
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the report was not placed upon the judicial file and he referred to the cross
examination of Makhan Lal in which he so deposed that no such receiving
note or receiving receipt of report under Section 42 NDPS Act is on the
judicial file. He has submitted that even otherwise also the alleged recovery
from the petitioner was of 512 grams of heroin which falls under the
commercial quantity but considering the long custody of petitioner which is
more than 02 years and 06 months, the petitioner may be considered for the
grant of regular bail.
4. On the other hand, learned State counsel has stated that it is
correct that the petitioner is in custody from 25.08.2021, which is more
than 02 years and 06 months. It is also not disputed by learned State
counsel that till date only 05 prosecution witnesses have been examined
and 03 prosecution witnesses have been given up. He further submitted
that as per the custody certificate, the petitioner is involved in three more
criminal cases and out of the aforesaid three cases, he has since been
acquitted in one case and the second case pertains to Prison Act and in third
case the petitioner is on bail. He further submitted that since recovery from
the petitioner was 512 grams of heroin, the same falls in the category of
the commercial quantity and as such opposed the grant of regular bail to the
petitioner on the ground that bar under Section 37 of the NDPS Act will
apply in the present case.
5. I have heard the learned counsel for the parties.
6. The total custody of the petitioner as per the custody certificate
has come out to be more than 02 years and 06 months. The alleged
recovery from the petitioner was 512 grams of heroin which undoubtedly
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falls in the category of commercial quantity under the NDPS Act.
Therefore, this Court would consider the prayer of the petitioner in the light
of Section 37 of NDPS Act. As per the learned counsel for the parties, 05
prosecution witnesses till date have been examined and 03 prosecution
witnesses have been given up. The charges in the present case were framed
on 04.04.2022 which is almost about 02 years ago.
7. A perusal of the affidavit which has been filed by the police
would show that information was received by the aforesaid Munish Riat
and he instead of reducing the same in the form of writing, sent the
information to another person namely Baljinder Singh and thereafter in turn
the aforesaid Makhan Lal has reduced the same in the form of writing.
During the course of arguments, learned Senior counsel has referred to a
judgment of Hon'ble Supreme Court in Directorate of Revenue (supra) to
contend that the person who received the information ought to have
reduced the same in the form of writing and in case the same is not done
then it is in violation of Section 42 of the NDPS Act. This Court, at this
stage, would not make any observation with regard to the aforesaid as to
whether there was a violation of Section 42 of the NDPS Act or not but the
same can always be a relevant factor for considering the prayer of the
petitioner for the grant of the regular bail. The custody of the petitioner
which is stated to be more than 02 years and 06 months is long custody and
only 05 prosecution witnesses have been examined and 03 have been given
up till date, despite the fact that about 02 years have elapsed, after framing
the charges. During the course of arguments, learned Senior counsel for
the petitioner also referred a judgment of Hon'ble Supreme Court in
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Satender Kumar Antil Versus Central Bureau of Investigation and
another [2022 (10) SCC 51] and also a latest judgment of the Hon'ble
Supreme Court in Mohd. Muslim @ Hussain Versus State (NCT of
Delhi) [2023 AIR (SC) 1648] to contend that when there is long trial and
the same is not progressing in a fast pace, then the right to speedy trial is
affected and therefore the Fundamental Rights under Article 21 of the
Constitution of India are affected.
8. This Court is of the view that considering the aforesaid
judgments as also considering the custody of the present petitioner and the
fact that about 02 years have been elapsed after framing the charges and
only 05 prosecution witnesses have been examined, this Court is of the
view that the bar of Section 37 of the NDPS Act will not apply to the
present petitioner in the light of Article 21 of the Constitution of India.
9. In view of the aforesaid facts and circumstances, the present
petition is allowed and the petitioner is ordered to be released on regular
bail on furnishing bail bond/surety bond to the satisfaction of the trial
Court/Duty Magistrate concerned, if not required in any other case.
10. However, anything observed hereinabove shall not be treated as
an expression of opinion on merits of the case and is only meant for the
purpose of decision of the present petition.
(JASGURPREET SINGH PURI)
JUDGE
05.03.2024
shweta
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:031824
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