Rahul vs State Of Punjab
2024 Latest Caselaw 19122 P&H

Punjab-Haryana High Court

Rahul vs State Of Punjab on 23 October, 2024

Author: Pankaj Jain

Bench: Pankaj Jain

                                Neutral Citation No:=2024:PHHC:139021




[329]       IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

                                  CRM-M--50679-2024
                                  Date of Decision : 23.10.2024


Rahul                                                     ...Petitioner

                                 versus

State of Punjab                                           ....Respondent


Coram :     HON'BLE MR. JUSTICE PANKAJ JAIN


Present:    Mr. Sandeep Verma, Advocate for the petitioner.
            Mr. Solomon Partap Singh, AAG, Punjab.

            ***

PANKAJ JAIN,
       JAIN J. (ORAL)

[1] Prayer is for grant of regular bail to the petitioner in case FIR

No.0031 dated 23.02.2023 registered under Sections 20, 25 and 29 of the

NDPS Act, 1985 at Police Station Focal Point, District Ludhiana Ludhiana.

[2] At the outset, counsel for the petitioner submi submits ts that

inadvertently, the present petition has been filed under Section 439 Cr.P.C.

and on his oral request, the same be treated one under Section 483 of BNSS.

[3] Allowed as prayed for. Present petition is treated as petition

filed under Section 483 of the BNSS.

[4] As per the case of prosecution, the petitioner was found in

possession of 22 kg. of ganja,, which is a commercial quantity.

[5] Custody certificate dated 21.10.2024 has been filed in Court

today. The same is taken on record. As per the custody certificate, the

petitioner is behind bars for more than 01 year 07 months and 25 days.

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[6] Counsel for the petitioner submits that the there are 08 other

FIRs registered against the petitioner wherein, he is on bail and is facing

trial. He further submits that there are 13 prosecution witnesses and till now,

none has been examined despite the fact that the petitioner is in custody for

more than 01 year 07 months and 25 days.

[7] Learned State counsel is not in a position to dispute the

aforesaid facts.

[8] I have heard learned counsel for the parties and have carefully

gone through the records of the case.

[9]          Learned counsel for the petitio
                                     petitioner
                                            ner relies upon order passed by

the 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 guarante guaranteed ed 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."

[10] Earlier to Rabi Prakash's case (supra) also Apex Court has

consistently held that the prolonged incarceration has to be considered de consistently

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hors bar contained under Section 37 of the NDPS Act. The Supreme Court

in order dated 22.08.2022 passed in Special Leave to Appeal (Crl.)

2022 titled as "Mohammad Salman Hanif Shaikh Vs. The State No.5530-2022

of Gujarat, had held as under:-

"We 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 inthe above terms.

Pending application(s), if any, shall also stand disposed of."

[11] Supreme Court in order dated 07.02.2020 pas passed 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 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 th appellant under Section 439 Cr.P.C. seeking bail in connection with Criminal Case No.146 of 2018 registered with Taherpur Police

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Station for offence punishable under Section 21 21-C 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 ining 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 ject 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.

(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."

[12] In order dated 05.08.2022 in Criminal Appeal No.1169 of 2022

Patra @ Gopalrusma Vs. Union of India," the titled as "Gopal Krishna Patra

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 27-AA, AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 11985.

The application seeking relief of bail having been rejected, the instant appeal has been filed.

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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 duced 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.

(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."

[13] In order dated 01.08.2022 in Special Leave to Appeal (Crl.)

No.5769/2022 titled as "Nitish Adhikary @ Bapan Vs. The State ooff 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 be been en 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 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.

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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."

[14] The petitioner is behind bars since 26.02.2023.. By now, out of

13 prosecution witnesses, none has been examined.

[15] Without ithout commenting anything on the merits of the case but

keeping in view the incarceration suffered by the petitioner i.e. more than 01

year 07 months and 25 days in the present case and that the trial has

proceeded at snail's pace, the present petition deserves to be allowed.

allowed

Petitioner is ordered to be released on regular bail, ssubject ubject to his furnishing

bail/surety bonds to the satisfaction of the learned Trial Court/Magistrate,

concerned. However, the same shall be subject to the following conditions:-

conditions:

(i) The petitioner shall not mis mis-use use the liberty granted.

(ii) The petition petitioner er shall not tamper with any evi-

ev dence oral or documentary during the trial.

(iii) The petitioner shall not absent himself on any date before the trial.

(iv) The petitioner shall not commit any offence while on bail.

(v) The petitioner shall deposit his passport, if any with the trial Court.

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(vi) The petitioner shall give his cellphone number to the police authorities and shall not change his cell-phone phone number without permission of the trial Court.

(vii) The petitioner sshall hall 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]          Ordered accordingly.



                                                       (PANKAJ JAIN)
                                                          JUDGE
23.10.2024
'R. Sharma'

                     Whether speaking/ reasoned   :    Yes/No
                     Whether reportable           :    Yes/No




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