Punjab-Haryana High Court

Vishwash Kumar vs State Of Punjab on 8 May, 2024

Author: Jasjit Singh Bedi

Bench: Jasjit Singh Bedi

                                 Neutral Citation No:=2024:PHHC:064231

CRM-M-652324-2023

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 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(240)

                     CRM-M-65234-2023 (O & M)
                     Date of decision: 08.05.2024
Vishwash Kumar                                                   .... Petitioner

           V/s
State of Punjab                                              ...Respondent


CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI

Present:     Mr. Sukhbir Maandi, Advocate,
             for the petitioner.

             Mr. Vinay Kumar Malhotra, DAG, Punjab.

                 *****

JASJIT SINGH BEDI, J. (Oral)

The prayer in the present petition under Section 439 Cr.P.C. is

for the grant of regular bail to the petitioner in case FIR No.225 dated

06.09.2022 under Section 21 of the NDPS Act, 1985 (Sections 29/61/85

NDPS Act added later on) at Police Station Division No.8, District Police

Commissionerate Jalandhar.

2. The brief facts of the case are that while the police party was on

the patrolling duty, two persons, namely, Lovejeet Singh and Vishwash

Kumar (petitioner) were apprehended on the basis of suspicion. During their

search, 400 grams of heroin wrapped in a polythene bag was recovered from

the right pocket of the pant worn by Lovejeet Singh and 300 grams wrapped

in a polythene bag was recovered from the right pocket of the pant worn by

the petitioner-Vishwash Kumar.

During investigation, Lovejeet Singh and Vishwas Kumar

suffered a disclosure statement that they had brought the said heroin from 1 of 6

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one Rahul who brought the same from Sher Singh @ Shera (since granted

bail vide order dated 16.11.2023 in CRM-M-33390-2023) and Ajay Singh @

Ajay (since granted bail vide order dated 20.02.2024 passed in CRM-M-

7676-2024). Thereafter, Rahul, Sher Singh @ Shera and Ajay Singh @ Ajay

were nominated as accused in the present case on 10.09.2022 and the

offence under Section 29 of the NDPS Act was added.

On 09.12.2022, on the basis of secret information, Sher Singh

@ Shera and Ajay Singh were apprehended in the area of Focal Point,

Chowk, Jalandhar. During their search, 255 grams of heroin wrapped in a

polythene envelop was recovered from the left pocket of the pant worn by

Ajay Singh and 255 grams heroin wrapped in polythene envelope was

recovered from the left pocket of the pant worn by Sher Singh @ Shera.

3. The learned counsel for the petitioner contends that the

petitioner 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 he was a first-time offender, in custody since

06.09.2022 and none of the 11 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,

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decided on 04.05.2023, moreso, when two co-accused, namely, Sher Singh

@ Shera and Ajay Singh @ Ajay have been granted the concession of bail.

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

commercial quantity of contraband had 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 was a first time offender, in custody since 06.09.2022,

none of the 11 prosecution witnesses had been examined so far and two

co-accused have been granted the similar concession.

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 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 3 of 6

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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 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

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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. 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.

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

06.09.2022 and none of the 11 prosecution witnesses have been 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

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petitioner can be considered for the grant of bail, moreso, when his

two co-accused have been granted the similar relief.

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

petition is allowed and the petitioner-Vishwash Kumar 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.

11. 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.

12. In addition, the petitioner (or anyone on his behalf) shall

prepare an FDR in the sum of Rs.1,00,000/- 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.