Punjab-Haryana High Court

Rakesh Kumar vs State Of Haryana on 18 March, 2024

Author: Jasjit Singh Bedi

Bench: Jasjit Singh Bedi

                                 Neutral Citation No:=2024:PHHC:038671




                                                           2024:PHHC:038671

CRM-M-48367-2023                                                  ::1::

(218)




 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                           Date of decision: 18.03.2024


(1)        CRM-M-48367-2023 (O & M)


Rakesh Kumar                                                      .... Petitioner


           V/s


State of Haryana                                                 ...Respondent

(2)        CRM-M-60748-2023 (O & M)

Vikas alias Vicky                                              .... Petitioner


           V/s

State of Haryana                                              ...Respondent


CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:     Mr. K.L. Saini, Advocate, (in CRM-M-48367)
             and Mr. S.K. Kaushik, Advocate (in CRM-M-60748)
             for the petitioner(s).

             Mr. Kanwar Sanjiv Kumar, AAG, Haryana.

                 *****

JASJIT SINGH BEDI, J. (Oral)

This order shall dispose of two criminal miscellaneous petitions i.e. CRM-M-48367-2023 and CRM-M-60748-2023 as they arise out of the same FIR.

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2. The petitioner-Rakesh Kumar (petitioner in CRM-M-48367-

2023) and the petitioner-Vikas @ Vicky (in CRM-M-60748-2023) seek the

grant of regular bail under Section 439 Cr.P.C. in case bearing FIR No.402

dated 17.08.2022 under Sections 22(C), 29-A/29-61-85 of the NDPS Act,

1985 registered at Police Station City Jind, District Jind.

3. For the sake of convenience, the facts are being taken from the

petition bearing No. CRM-M-60748-2023.

4. The brief facts of the case are that Vikas @ Vicky (petitioner in

CRM-M-60748-2023) came to be apprehended with 500 Pentazocine

injections (Tazovin), 1440 capsules (Tramadol Hydrochloride), 360 tablets

(Lorazepam) and 22 vials of Codeine Phosphate Cough Syrup 100 ML each.

During the course of investigation, he disclosed that he purchased the

recovered prohibited drugs from Rakesh Kumar (petitioner in CRM-M-

48367-2023) for a sum of Rs.30,000/-.

5. The learned counsel for the petitioners contend that the

petitioners had been falsely implicated in the present case. The mandatory

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

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

time of search and seizure. As they were first-time offenders, in custody

since 21.08.2022 and 17.08.2022 respectively and none of the 27

prosecution witnesses had been examined so far, the Trial of the present case

was not likely to be concluded anytime soon and therefore, they were

entitled to the concession of bail in view of the judgment of the Hon'ble

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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,.

6. On the other hand, the learned State counsel contends that

commercial quantity of contraband had been recovered from the petitioners.

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

the petitioners were not entitled to the grant of bail. He, however, concedes

that the petitioners were first time offenders, in custody since 21.08.2022

and 17.08.2022 respectively and none of the 27 prosecution witnesses had

been examined so far.

7. I have heard the learned counsel for the parties.

8. 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 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

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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."

9. 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 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 4 of 7

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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)

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10. Admittedly, in 'Nitish Adhikary @ Bapan (supra) and

Hasanujjaman & others (supra)', the accused therein had been granted the

concession of bail by the Hon'ble Supreme Court after they had undergone

approximately one and a half years of custody. They were also first-time

offenders as is borne out from the orders.

11. In the instant case(s), the petitioners are stated to be in custody

since 21.08.2022 and 17.08.2022 respectively and none of 27 prosecution

witnesses have been examined so far. They are also first-time offenders with

no other case registered against them. 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 petitioners can be considered for

the grant of bail.

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

petitions are allowed and the petitioner-Vikas @ Vicky (in CRM-M-60748-

2023) and Rakesh Kumar (in CRM-M-48367-2023) are ordered to be

released on bail subject to their furnishing bail bonds and surety bonds to the

satisfaction of learned CJM/Duty Magistrate, concerned.

13. The petitioners 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 they are not involved in any other crime other than

the present case.

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14. In addition, the petitioners (or anyone on their behalf) shall

prepare an FDR in the sum of Rs.2,00,000/- each 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 petitioners from trial without sufficient cause.