Kamaldev Gharti vs State Of Punjab
2024 Latest Caselaw 5627 P&H

Punjab-Haryana High Court

Kamaldev Gharti vs State Of Punjab on 13 March, 2024

Author: Jasjit Singh Bedi

Bench: Jasjit Singh Bedi

                                                          Neutral Citation No:=2024:PHHC:036206




                                                                 2024:PHHC:036206

CRM-M-11769-2024                                                     #1#

230
        IN THE HIGH COURT OF PUNJAB & HARYANA AT
                      CHANDIGARH.

                                                         CRM-M-11769-2024
                                                 Date of Decision:-13.03.2024
KAMALDEV GHARTI

                                                                    ......Petitioner
                                   VERSUS

STATE OF PUNJAB

                                                                  ......Respondent

CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI

Present:-   Mr. Abhinay Goel, Advocate
            for the Petitioner.

          Mr. Deepinder Singh Brar, Addl. DAG, Punjab.
                           ***
JASJIT SINGH BEDI, J.(ORAL)

The prayer in this petition under Section 439 Cr.PC is for the

grant of regular bail in case FIR No.08 dated 08.01.2021 registered under

Sections 18, 20, 22, 29-61-85 of the NDPS Act at Police Station Lalru,

District SAS Nagar, Punjab.

2. The brief facts of the case are that petitioner-Kamaldev Gharti

was found in possession of 9 kg. 500 grams of charas and 2 Kg of opium

whereas his co-accused namely, Parmod Jang Shah (granted bail vide

13.07.2023 passed in CRM-M-21822-2021) was found in possession of

6000 tablets of Lomotil, 75 vials of Biorax and 900 tablets of Nitravet-10.

The FIR was registered and they were arrested. They suffered their

disclosure statements naming Jang Kanwar and Kali Bahadur (both granted

bail vide order dated 06.04.2022 passed in CRM-M-30279-2021 and CRM-

M-5900-2022).

3. The learned counsel for the petitioner contends that the

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petitioner has been falsely implicated in the present case. The mandatory

provisions of Sections 42 and 50 of the NDPS Act have not been complied

with in their proper perspective. No independent witness was joined at the

time of search and seizure. As he was a first-time offender, in custody since

08.01.2021 and only 02 out of the 13 prosecution witnesses had been

examined so far, the Trial of the present case was not likely to be concluded

anytime soon and therefore, he was entitled to the concession of bail in view

of 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.

Therefore, in view of the bar contained under Section 37 of the NDPS Act,

the petitioner was not entitled to the grant of bail. He, however, concedes

that the petitioner is a first time offender, in custody since 08.01.2021 and

only 02 out of the 13 prosecution witnesses had been examined so far.

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:-

"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

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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.

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

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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)

8. In the instant case, the petitioner is stated to be in custody since

08.01.2021 and only 02 out of the 13 prosecution witnesses have been

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examined so far. He is also a first-time offender with no other case registered

against him. In this situation, the rigors of Section 37 of the NDPS Act can

be diluted to an extent in view of the salutary provisions of Article 21 of the

Constitution of India which provides for the right to a speedy trial and the

case of the petitioner can be considered for the grant of bail.

9. Thus without commenting on the merits of the case, the present

petition is allowed and the petitioner-Kamaldevi Gharti son of Nar Bahadur

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.3,00,000/- 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
13.03.2024
JITESH
         Whether speaking/reasoned                   Yes/No
         Whether reportable                          Yes/No

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