Punjab-Haryana High Court
Prabhu Shan vs State Of Haryana on 18 November, 2024
Neutral Citation No:=2024:PHHC:149949
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
218 CRM-M-28393-2024
Date of Decision : November 18, 2024
PRABHU SHAN -PETITIONER
V/S
STATE OF HARYANA -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Rakesh Kumar Lathwal, Advocate
for the petitioner.
Mr. Bhupender Singh, D.A.G., Haryana.
***
KULDEEP TIWARI, J. (ORAL)
1. Through this second petition cast under Section 439 of the
Cr.P.C., the petitioner prays for him being granted the concession of
regular bail, in case FIR No.187 dated 20.04.2022, under Sections 20/27-
A/29 (added subsequently) of the N.D.P.S. Act, and, Section 201 of the
IPC, registered at P.S. Sampla, District Rohtak.
2. Succinctly stated, the recovery of 06 kgs 100 grams of
Charas from the possession of the petitioner has constituted the bedrock
for registration of the present FIR.
3. The learned counsel for the petitioner opts not to address any
arguments on merits of the case, rather confines the sphere of his
arguments only to the period of incarceration suffered by the petitioner,
besides the stage of trial. He submits that, since the trial is at initial stage,
inasmuch as, only 01 prosecution witness, out of total 22 witnesses, has
been examined so far, therefore, no fruitful purpose would be served by
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keeping the petitioner behind the bars, who has clean antecedents and
already suffered incarceration of approx. 02 years and 07 months.
4. Per contra, the learned State counsel vociferously opposes
the grant of regular bail to the petitioner, on the ground that, since the
recovered contraband falls within the category of "commercial quantity",
therefore, in view of the statutory bar engrafted in Section 37 of the
N.D.P.S. Act, the petitioner does not deserve the concession of bail.
5. Although the learned State counsel opposes the grant of bail
to the petitioner, however, on instructions imparted to him by the
official/officer concerned, he verifies that, out of total 22 witnesses, only
01 prosecution witness has been examined so far. He also files the
custody certificate of the petitioner, which is taken on record.
6. This Court has heard the submissions made by the learned
counsels for the parties and perused the record.
7. Although it is not under dispute that the recovered
contraband falls within the ambit of "commercial quantity", thus
attracting the rigor of Section 37 of the N.D.P.S. Act, however, it is also
not under dispute that sufficient period of incarceration dilutes the
stringent conditions of Section 37 of the N.D.P.S. Act. Gainful reference
in this regard can be made to "Rabi Prakash Versus The State of
Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023, wherein,
the Hon'ble Supreme Court has discussed the effect of Section 37 of the
NDPS Act in such like cases of long custody. The relevant portion of the
aforesaid judgment contained in para No.4 is reproduced as under:-
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"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."
8. Therefore, be that as it may, considering the fact that: (i) as
per the custody certificate dated 14.11.2024, as placed on record by the
learned State counsel, the petitioner has clean antecedents and suffered
incarceration of 02 years, 06 months and 17 days till 14.11.2024; (ii) there
is no likelihood of the trial concluding anytime soon, inasmuch as, out of
total 22 witnesses, only 01 prosecution witness has been examined so far;
this Court deems it appropriate to grant the concession of regular bail to
the petitioner. Therefore, without commenting upon the merits and
circumstances of the present case, the present petition is allowed. The
petitioner is ordered to be released on bail on furnishing of bail bond and
surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial
Court/Duty Magistrate.
9. However, anything observed here-in-above shall have no
effect on the merits of the case and is meant for deciding the present
petition only.
(KULDEEP TIWARI)
November 18, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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