Punjab-Haryana High Court
Balwinder Singh Alias Amb vs State Of Punjab on 21 March, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:041170
CRM-M-40372-2023 (O&M) 1
2024:PHHC:041170
207
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-40372-2023 (O&M)
Date of decision : 21.03.2024
BALWINDER SINGH ALIAS AMB ....Petitioner
Versus
STATE OF PUNJAB ....Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Ravi Mehra, Advocate for the petitioner.
Mr. J.S. Arora, DAG, Punjab.
PANKAJ JAIN, J. (ORAL)
This petition has been filed under Section 439 Cr.P.C. for grant
of regular bail to the petitioner in case F.I.R. No.403 dated 26th of October,
2022 registered for the offences punishable under Sections 21-C
(21-C/61/85) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short, 'the NDPS Act') at Police Station Goindwal Sahib, District Tarn Taran.
2. Petitioner has been booked in the aforesaid FIR on the ground
that 272 grams of heroin was recovered from the dashboard of the car that he
was riding. On 8th of November, 2023 the following order was passed :
"Status report by way of affidavit of Ravisher Singh, PPS,
Deputy Superintendent of Police, Sub Division Khadur Sahib,
Camp at Goindwal Sahib, District Tarn Taran has been filed on
behalf of the respondent-State. The same is taken on record.
Counsel for the petitioner has produced copy of the notice
under Section 50 of NDPS Act, consent memo, recovery memo
and recovery memo of XUV car and has demonstrated that there is
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a difference between signatures of the witnesses on the said
memos. Even some memos have been signed in English, whereas
other documents have been signed in Punjabi by the same person
to submit that it is highly improbable that all these documents are
expected to have come into being on the same time and the
witnesses are signing differently.
State counsel prays for time to respond to the same by filing
affidavit.
On his request, adjourned to 06.12.2023."
3. In compliance thereto, affidavit of Ravisher Singh, PPS, DSP,
Sub Division Khadur Sahib, Camp at Goindwal Sahib, District Tarn Taran,
dated 1st of February, 2024 has been filed. The stand taken therein reads as
under :
"4. That it is submitted that so far the facts of difference
between signatures of the witnesses on the memos i.e. notice under
Section 50 of the NDPS Act, Consent memo, Recovery Memo and
recovery of XUV car is concerned, it is submitted that in order to
verify the said fact, the deponent has called the concerned official
witnesses namely ASI Balbir Chand No. 964/TT and HC Nirmal
Singh 26/TT in his office and put query about the difference
between signatures on the said memos and in this regard their
respective statements have also been recorded and in their
statements they stated that the notice under section 50 of NDPS
Act, Consent memo, Recovery Memo and recovery of XUV were
prepared by the investigating officer SI Jagtar Singh at the spot and
same were signed by them in the presence of investigating officer
at the spot on 26.10.2023.
5. That it is submitted that from the enquiry conducted so far, it is
submitted that the signatures appended on the said memos in
Punjabi and English language were signed by ASI Balbir Chand
No. 964/TT and HC Nirmal Singh 26/TT themselves and they
recognized their respective signatures.
6. That it is submitted that mere difference between signatures on
the said memo in Punjabi and English language, it cannot be said
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that it is highly improbable. There is no ambiguity or dent in
prosecution case. Moreover, the offence which is committed by the
petitioner is not against any individual person rather same is
offence against society hence the petitioner is certainly not entitled
for the concession of regular bail at this stage."
4. Apart therefrom, counsel for the petitioner submits that the
petitioner is behind bars for more than 1 year, 4 months and 24 days.
Investigation stands concluded way back on 21st of April, 2023 and the
charges were framed on 24th of July, 2023, yet till date only one out of 14
cited witnesses could be examined. The trial now is stated to be fixed for
28th of April, 2024.
5. Learned Counsel for the petitioner relies upon order passed by
Apex Court in the case of Rabi Prakash Vs. The State of Odisha passed in
Special Leave to 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."
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6. 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."
7. 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 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.
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8. 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.
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(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 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.
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(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."
10. 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: -
"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.
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Pending application(s), if any, shall stand disposed of."
11. State Counsel though does not dispute the factual assertions
made by counsel for the petitioner w.r.t. the stage of the trial but submits that
the petitioner is involved in two more cases under the NDPS Act.
12. Faced with the situation, counsel for the petitioner submits that
both the cases involved less than commercial quantity and the petitioner has
earned bail in both the cases.
13. I have heard counsel for the parties and have gone through
records of the case.
14. Having heard rival contentions and after going through records
of the case, without commenting on the merits of the case, keeping in view
the incarceration already suffered by the petitioner and the fact that the
investigation already stands concluded and Challan stands presented, the
present petition is allowed. The petitioner is ordered to be released on bail
on his furnishing bail bonds/surety bonds to the satisfaction of the Trial
Court/Duty Magistrate concerned.
15. 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.
(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.
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(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.
16. 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.
17. Needless to say that anything observed hereinabove shall not be
construed to be an expression of opinion on the merits of the case.
18. Pending application, if any, shall also stand disposed off.
March 21, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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