Punjab-Haryana High Court
Gurjant Singh vs State Of Punjab on 30 August, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:114775
CRM-M-32096-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-32096-2024
Reserved on: 12.08.2024
Pronounced on: 30.08.2024
Gurjant Singh ...Pe""oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Arnav Ghai, Advocate for the pe""oner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta#on Sec#ons 86 10.08.2023 Longowal, District 22/61 of NDPS Act Sangrur
1. The pe""oner incarcerated in the FIR cap"oned above had come up before this Court under Sec"on 439 CrPC, 1973 seeking regular bail.
2. In paragraph 20 of the bail pe""on, the accused declares that he has no criminal antecedents.
3. The facts and allega"ons are taken from para 8-A of the reply which reads as follows:
"8. A. ROLE OF THE PETITIONER GURJANT SINGH That on 10.08.2023, during checking accused/pe oner Gurjant Singh and Harjinder Singh were apprehended alongwith car bearing no. UP16AX 0501 make scorpio, by A.S.I. Onkar Singh. Further inves ga on was carried out by S.I. Amandeep Kaur, who in the presence of private witness namely Pushpinder Singh s/o Ran Singh r/o Badrukan, conducted the search of opened mouth transparent polythene envelope lying in the said scorpio car and on checking 50 intoxicant vials Chlorpheniramine Maleate and Codeine phosphate syrup marka Omerex 100 ML and 65 strips each strip containing 10/10 tablets total 650 intoxicant tablets marka Carisoprodol tablets IP Carisoma tablets were recovered from the possession of accused Harjinder 1 1 of 16 ::: Downloaded on - 03-09-2024 22:59:56 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 Singh and Gurjant Singh (pe oner), which were being transported in the said car, which is in the name of accused Harjinder Singh. So, a specific role is a:ributed to the pe oner in the commission of present offence."
3. The Inves"gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
4. The pe""oner's counsel made the following submission:
a) As per the allega ons in the FIR, this is the case of chance recovery. It is said that on 10.08.2023 at about 6:15 pm ASI Omkar Singh was present for checking of suspected persons, when a while scorpio car was nabbed. The driver of whose was Harjinder Singh and Gurjant Singh is said to be si>ng on the conductor seat.
b) It is then the case of the inves ga ng agency that on the rear seat of the car, a white colour bag having intoxicated vials and tablets were visible.
c) Therea?er, it is said that a ruqa was sent. It is per nent to men on here that in the said ruqa sent by ASI Omkar Singh, it has not come forth as to how ASI Omkar Singh came to know that these were intoxica ng tablets as neither the name of the intoxica ng tablets nor their batch number, manufacturing date and expiry were men oned in the alleged ruqa which formed the basis of the present FIR. (Ruqa Annex. P-2, Pg. 15).
d) Even the recovery memo (Annex.P-3, Pg. 19) was not signed by ASI Omkar Singh who is the complainant and inves ga ng officer in the present case. In order to circumvent this informity in the manner in which this manipulated inves ga on was carried out, the inves ga ng agency came up with a story that in fact ASI Omkar Singh was sent back in a private vehicle and was relieved from his duty on the site.
e) The said recovery is said to be from the rear seat of the car. Gurjant Singh who is said to be si>ng on the passenger seat on the car cannot be said to be in conscious possession of the alleged contraband, if any. As the inves ga ng agency has failed to prove that Gurjant Singh was related to the other accused Harjinder Singh. Also, from the personal search of either Gurjant Singh or Harjinder Singh, no contraband was recovered.
f) That even the report under Sec on 42(1) of the NDPS Act which is the mandatory procedure that is to be followed by the inves ga ng agency while conduc ng any search or seizure under the NDPS Act. In the said report, the FIR number is men oned, whereas it is relevant to point out that only the ruqa had been sent and the FIR had not been registered ll then.2
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g) On the alleged contraband seal of SI Amandeep Kaur is said to be there, but she was neither present when the accused were apprehended nor was she an a:es ng witness to the recovery memo.
h) There is a delay in sending the sample to the FSL. The alleged recovery is said to have taken place on 10.08.2023, but the sample is sent to FSL on 14.08.2023. Therefore, there is a delay of about 4 days in sending the sample to FSL which corroborates to the fact that the alleged contraband has been foisted upon the accused and the search and seizure conducted by them is not in accordance with law.
i) Both the pe oners are in custody since 10.08.2023, which is more than 1 year of custody. Even as per the reply filed by the State, there is no other case pending against them. The charges have been framed on 29.05.2024 and the case has been adjourned for more than 4 mes as the accused are not produced by the jail authori es on all of these occasions and the case is now fixed for 23.08.2024. Therefore, the trial has come to a virtual stand s ll leading to further incarcera on of both the pe oners and being viola ve of Ar cle 21 of the Cons tu on of India."
5. The pe""oner's counsel prays for bail by imposing any stringent condi"ons and contends that further pre-trial incarcera"on would cause an irreversible injus"ce to the pe""oner and their family.
6. The State's counsel opposes bail and refers to the reply.
7. It would be appropriate to refer to para 8 B of the bail pe""on, which reads as follows:
"8-B. THE EVIDENCE AGAINST THE PETITIONER. The 50 intoxicant vials Chlorpheniramine Maleate and Codeine phosphate syrup marka Omerex 100 ML and 65 strips each strip containing 10/10 tablets total 650 intoxicant tablets marka Carisoprodol tablets IP Carisoma tablets were recovered from the possession of accused Harjinder Singh and Gurjant Singh (pe oner)."
8. The quan"ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe""oner must sa"sfy the twin condi"ons put in place by the Legislature under Sec"on 37 of the NDPS Act.
9. In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal, Criminal Appeal No.1202/2024, the Hon'ble Supreme Court held as under:-
33 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 "Heard learned counsel for the appellant in support of the pe on and learned counsel for the State and perused the material on record. The appellant is in custody for approximately 1 year 4 months.
During the course of submission it was pointed out by the learned counsel for the appellant that in another case the appellant has been granted bail and therefore, similar relief may be granted by this Court in this case.
The said submission is in response to the submission made by the learned counsel for the respondent-State that this is not the only case in which the appellant has been apprehended. She further submi:ed that a huge quan ty of codeine cough syrup was recovered from the premises (Godown) which has been tenanted by the appellant herein. Considering the facts on record, in our view, the case for bail is made out."
10. In Debrata Mondal vs State of West Bengal, Special Leave to Appeal (Crl.) No.14970/2023, a Division Bench of Hon'ble Supreme Court held as under:-
"3. Going by the allega ons, 290 bo:les of phensedyl syrup was recovered from the possession of the pe oner and the co-accused. The fact is that the co-accused was enlarged on bail by the High Court. The pe oner is in custody since 10.01.2022. Taking into account the aforesaid aspects, we are of the considered view that the pe oner can be enlarged on bail, subject to the terms and condi ons to be imposed by the Trial Court. Ordered accordingly. In that regard, the pe oner shall be produced before the Trial Court, forthwith."
11. In Santarul Islam @ Santa vs The State of West Bengal, Special Leave to Appeal (crl.) No.13169/2023, a Division Bench of Hon'ble Supreme Court held as under:-
"3. Considering the above and looking at the nature of the contraband (100 bo:les of Phensedyl cough syrup) which recovered from the accused in FIR No.18/2022. appropriate to grant bail to the pe oner. deem it Accordingly the pe oner (Santarul Islam Santa) be released on bail in connec on with the case arising out of Jalangi P.S. Case 4 4 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 No.18/2022. Appropriate bail condi ons be imposed by the learned Trial Court."
12. In Indrajit Mondal @ Piglu vs The State of West Bengal, Special Leave to Appeal (Crl.) No.8512/2023, a three Bench of Hon'ble Supreme Court held as under:-
"2. FIR No 355 of 2021 was registered at PS Murshidabad for offences punishable under Sec ons 21(c) and 29 of the Narco c Durgs and Psychotropic Substances Act 1985. The allega on is that the pe oner was found to be in possession of ten litres of codeine phosphate.
3. We have heard Mr Praveen Swarup, counsel appearing on behalf of the pe oner, and Mr Shreyas Awasthi, counsel appearing on behalf of the State of West Bengal.
4. Counsel appearing on behalf of the State of West Bengal states that the charges have been framed on 4 January 2024 and the prosecu on proposes to examine seventeen witnesses.
5. The pe oner is in custody for over two years and five months. There is no prospect of the trial concluding on an early date. Hence, we are of the view that it would be appropriate and proper to release the pe oner on bail subject to such terms and condi ons as may be imposed by the Special Court under NDPS Act-cum-ADJ, Second Court Berhampore, Murshidabad in connec on with NDPS Case No 166 of 2021. Ordered accordingly."
13. In Narjul Islam @ Najbul Hoque vs The State of West Bengal, Special Leave to Appeal (crl.) No.14172/2023, a Division Bench of Hon'ble Supreme Court held as under:-
"The counsel for the pe oner would submit that the pe oner was arrested on 19.11.2022 in connec on with the case arising out of FIR No.477/2022 and the High Court rejected bail for the pe oner under the impugned order on 06.07.2023. It is also pointed out that the 100 bo:les of Phensedyt Syrup containing codiene phosphate were seized in the case. Mr. Gupta would then advert to various bail orders passed by this Court in cases with similar kind of contraband.5
5 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 Admi:edly, charges are yet to be framed and the trial is unlikely to conclude in near future. The State counsel by way of explana on submits that charges in this case could not be framed as one of the accused is absconding.
Having regard to the circumstances here and the remote possibility of the trial to conclude in near future and the incarcera on of the pe oner for over a year in connec on with the contraband in ques on, we deem it appropriate to grant bail to the pe oner.
Accordingly, the pe oner (Najrul Islam Najbul Hoque) be released on bail. Appropriate terms and condi ons for bail is to be imposed by the learned Trial Court."
14. In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal, a Division Bench of Hon'ble Supreme Court held as under:-
"2. The allega ons are that the pe oner along with other accused persons were found in possession of two plas c bags a cough containing a total of 10,000 ml. Of codeine phosphate narco c substance. It further syrup, which is no fied as a narco c substance. It further appears from the contents of the FIR that the pe oner, who was found in conscious possession of two white plas c containers both of which contained 5,000 ml. each of the said liquid. He was apprehended at the spot and is in custody since then.
3. The respondent State of West Bengal has filed its counter affidavit, in which it is candidly acknowledged that though the inves ga on is complete and the chargesheet has been filed, however, the charges are yet to be framed. The prosecu on proposes to examine 10 witnesses. The conclusion of trial will, thus, take considerable me. The pe oner is in custody for the last more than one and a half years.. He does not have any criminal antecedents.
4. According to learned counsel appearing on behalf of respondent State, the narco c substance allegedly recovered from the pe oner's possession is of commercial quan ty' 6 6 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 and, as such, the rigors of Sec on 37 of the NDPS Act are a:racted. We have considered the submission.
5. Taking into considera on the period already undergone by the pe oner in custody; the fact that he does not have any criminal antecedents and also keeping in view that the prolonged incarcera on will not serve the cause of substan al jus ce, however, without expressing any views on the merits of the case, we are inclined to release the pe oner on bail at this state. The pe oner is, accordingly, directed to be released on bail subject to the following direc ons:
(i) The pe oner shall furnish bail bonds to the sa sfac on of the Trial Court.
(ii) The pe oner shall appear before the Trial Court regularly on each and every date of hearing.
(iii) In case the pe oner is found involved in any other case under the NDPS Act, in that event, the bail granted to him shall stand cancelled automa cally and he shall be liable to surrender immediately.
6. The accordingly. Special Leave Pe on stands disposed of accordingly."
15. In Subhashri Das @Rana @ Subhoshree vs The State of West Bengal, Special Leave to Appeal (Crl.) No.15284/2023, a Division Bench of Hon'ble Supreme Court held as under:-
"The accusa on is that the pe oner was found in possession of 60 bo:les of Phensedyl Syrup (100 ml in each bo:le). The charge sheet was filed on 31.8.2022. The pe oner has been in custody since 12.3.2022. The applica on for bail filed by the pe oner was rejected by the High Court and hence this special leave pe on.
Heard learned counsel for the pe oner and also counsel for the Respondent-State. Taking note of the nature of the accusa on and the fact that the pe oner is in custody since 12.3.2022, we are of the considered view that the 7 7 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 pe oner can be ordered to released on bail subject to the terms and condi ons to be imposed by the Trial Court. Ordered accordingly. The pe oner shall be produced before the Trial Court forthwith for compliance with the order."
16. In Mithun Sk. & Anr. Vs The State of West Bengal, Criminal Appeal No.1200/2024, the Hon'ble Supreme Court held as under:-
"The appellants have been booked for the crime registered pursuant to FIR No.158 of 2022 dated 26.07.2022 lodged with Police Sta on Sagarpara, District Murshidabad, under Sec on 21(C)/29 of the NDPS Act, 1985. The High Court noted that the narco c substance i.e. 388 bo:les of phensedyl syrup containing codeine phosphate which is above commercial quan ty was recovered from the appellants and in view of the statutory restric ons under Sec on 37 of the NDPS Act, the applica on seeking bail was rejected.
Heard learned counsel for the par es.
We have perused the counter affidavit filed by the respondent-State.
It is submi:ed by the learned counsel for the appellant(s) that the appellants were not in conscious possession of the offending material and that the prosecu on has not complied with the requirements of Sec on 52-A of the Act, 1985. Further, the appellants are in jail since 26 July 2022. Therefore, the appellants may be granted bail during the pendency of the trial.
However, learned counsel for the respondent submi:ed that the recovery has been made from the appellants herein.
Considering the above facts on record, in our view, the case for bail is made out."
17. In SK. Nasiruddin @ Nasirddin SK. Vs State of West Bengal, Criminal Appeal No.1415 of 2024, the Hon'ble Supreme Court held as under:-
"5. We note the submission of the learned counsel for the appellant that the appellant was arrested on 12.04.2022 and since then he has been in custody as an under trial prisoner.8
8 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 Even though charges have been framed, trial is yet to begin but there is no likelihood of the trial being taken up and completed within a short period of me. It is also submi:ed that the appellant does not have any criminal antecedents. It is also brought to our no ce that the High Court while rejec ng the regular bail applica on had erroneously recorded that 50 ltrs. of codeine phosphate was recovered from the appellant. This is perhaps a mistake as recovery of only 5 ltrs of codeine phosphate which was men oned in the FIR."
18. In Indadul Shah vs The State of West Bengal, Special Leave to Appeal (Crl.) No.12670/2023, a Division Bench of Hon'ble Supreme Court held as under:-
"The pe oner was arrested on 27.10.2022 in furtherance of an FIR dated 27.10.2022 for offences punishable under Sec on 21(c)/29 of the Narco c Drugs and Psychotropic Substances Act, 1985. He was found in possession of 70 bo:les of 100 ml. Phensedyl.
We no ce from the record that charge-sheet has already been Filed on 20.04.2023. There is no likelihood of the trial being taken up and completed within a short period of me. There are no criminal antecedents involving the pe oner herein.
Considering the facts and circumstances, we are inclined to grant bail. The pe oner is directed to be released on bail in connec on with FIR No. 334 of 2022 registered at Police Sta on Jalangi District Murshidabad subject to such terms and condi ons as may be imposed by the Trial Court."
19. In Hanef Kharsani @ Hanef Sheikh vs Union of India, the Hon'ble Supreme Court held as under:-
"The appellant Hanef Kharsani @ Hanef Sheikh has been booked for the crime registered pursuant to NCB Crime No. 07/NCB/KOL/2023 dated 09.02.2023 in respect of offence punishable under Sec ons 8 (c) and 21 (c) of the Narco c Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act'). The appellant preferred an applica on under 9 9 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 Sec on 439 of the Code of Criminal Procedure, 1973 before the High Court seeking bail in the instant crime. The High Court noted that the narco c substance i.e. 415 bo:les of Phensedyl Syrup containing codeine phosphate which is above commercial quan ty was recovered from the appellant and in view of the statutory restric ons under Sec on 37 of the NDPS Act, the applica on seeking bail was rejected.
It is submi:ed by the learned counsel for the appellant that the appellant was not in conscious possession of the offending material and that the prosecu on has not complied with the requirements of the NDPS Act. Further, the appellant is in jail for approximately one year and two months and the trial is not likely to be completed in the near future. Moreover, in certain iden cal cases, the accused have been granted relief of bail by this Court. Therefore, the appellant may also be granted bail during the pendency of the trial.
Learned counsel for the appellant also brought to our no ce the fact that on comple on of the inves ga on, the charge sheet has been filed and there are seven witnesses but the trial has not yet commenced.
However, learned ASG appearing for the respondent submi:ed that this is not a fit case for grant of bail inasmuch as the quan ty which has been recovered is over and above the commercial quan ty and it has become a regular feature in that part of the country where enormous amounts of Phensedyl Syrup containing codeine phosphate is being recovered and, therefore, the applica on seeking bail may be dismissed.
Considering the facts on record, in our view, the case for bail is made out."
20. In Ripon Seikh & ors. Vs State of West Bengal, Special Leave to Appeal (Crl.) No.16663/2023, a Division Bench of Hon'ble Supreme Court held as under:-
1010 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 "4. On the other hand, having regard to the dura on of custody since the pe oners were arrested on 23.11.2022 and the nature of Contraband i.e., 73 bo:les of Phensedyl Syrup containing Codeine Phosphate recovered from the joint possession of the four accused, we deem it appropriate to grant bail to the pe oners Ripon Seikh, Sahin Seikh and Babu Sk, in connec on with FIR No. 310 of 2022 registered at P.S. Sagarparara, District Murshidabad. Appropriate bail condi ons be imposed by the learned Special Court, Murshidabad. It is ordered accordingly."
21. In Nijam Sheikh @ Md. Nijam SK @ MD Nizam SK vs The State of West Bengal, the Hon'ble Supreme Court held as under:-
"The appellant Nizam Sheikh Md. Nijam Sk Md. Nizam Sk has been booked for the crime registered pursuant to FIR No.90/22 dated 19.03.2022 lodged with Police Sta on Lalgola, District Murshidabad, under Sec on 21(C)/29 of the Narco c Drugs and Psychotropic Substances Act, 1985 (NDPS Act' for short). The High Court noted that the narco c substance i.e. 55 bo:les of phensedyl syrup containing codeine phosphate which is above commercial quan ty was recovered from the appellant and in view of the statutory restric ons under Sec on 37 of the NDPS Act, the applica on seeking bail was rejected.
Heard learned counsel for the appellant and counsel for the respondent-State.
It is submi:ed by the learned counsel for the appellant that the appellant was not in conscious possession of the offending material and that the prosecu on has not complied with the requirements of Sec on 52-A of the NDPS Act. Further, the appellant is in jail since 28.03.2022 and the trial is not likely to be completed in the near future. Therefore, the appellant may be granted bail during the pendency of the trial.
Learned counsel for the Respondent-State submi:ed that recording of evidence is to be commenced from tomorrow (i.e. 16.04.2024) and there are only eight (08) 11 11 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 witnesses as per the charge sheet and the trial would be completed expedi ously. Therefore, at this stage, the appellant need not be released on bail.
It was further submi:ed that the other seven (07) co- accused who were granted bail, are not coopera ng with the trial of the case and therefore, this is not a fit case where bail may be granted to the appellant herein.
Considering the facts on record, in our view, the case for bail is made out."
22. In Moidul Sarkar vs The State of West Bengal, Special Leave to Appeal (Crl.) No.15668/2023, a Division Bench of Hon'ble Supreme Court held as under:-
"3. Having considered the dura on of custody and the nature of Contraband i.e., 320 bo:les of Phensedyl Syrup seized from the pe oner, we deem it appropriate to grant bail to the pe oner Mohidul Sarkar in connec on with FIR No. 224 of 2022 registered at P.S. Sagarpara. The similar orders passed by this Court in SLP (Criminal) No. 12911 of 2023 on 22.01.2024 and Criminal Appeal No. 409 of 2024 on 25.01.2024 also noted. are Appropriate bail condi ons be imposed by the learned Special Court, Murshidabad. It is ordered accordingly."
23. In Saniya Bibi @ Soniya Bibi vs The State of West Bengal, Special Leave to Appeal (Crl.) No.2354/2024, a Division Bench of Hon'ble Supreme Court held as under:-
"3. Mr. Dibyadyu Banerjee for the pe oner points out that the Contraband in ques on is 105 bo:les of Phensedyl Syrup and the pe oner, who is a lady, is in custody for about 2 years 3 months since he was arrested on 24.01.2022. That apart, the next date of trial is fixed on 23.07.2024 and although 16 witnesses are cited, not a single witness is examined so far.
4. No ce in this case was issued on 04.03.2024 and today the State counsel prays for me to file counter affidavit.
5. Having considered the circumstances and more par cularly the dura on of custody, the nature of the Contraband and the unlikely possibility of the trial ge>ng 12 12 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 concluded on an early date, we deem it appropriate to grant bail to the pe oner Saniya Bibi@ Soniya Bibi in connec on with the FIR No. 30 of 2022 dated 24.01.2022 registered with P.S. Jalangi, District Murshidabad. It is ordered accordingly. Appropriate bail condi ons be imposed by the learned trial court."
24. In Saddam Hossain vs State of West Bengal, Special Leave to Appeal (Crl.) No.15496/2023, a Division Bench of Hon'ble Supreme Court held as under:-
"2. No ce in this case was issued on 08.12.2023, with the towing order:-
"... The counsel refers to the FIR 37/2023 to point out that 72 bo:les of 100 ml Phensedyl Syrup were seized and since each 5 ml contains 10 mg of codiene phosphate, the total quan ty of codeine phosphate in the 72 bo:les would be around 14.4 grams. Such quan ty is below the s pulated commercial quan ty in the Schedule to the NDPS Act.
It is further pointed out that the pe oner has been in custody for 10 months and charges are yet to be framed in the ma:er.
Issue no ce on the plea for bail, returnable in four weeks.
Das no ce on the standing Counsel for the State, in addi on."
3. Learned counsel for the state in his turn submits that evidence of witnesses is scheduled to commence in July 2024.
5. Looking at the above facts and more par cularly the nature of the contraband and the long custody of the pe oner since 23.01.2023, we deem it appropriate to grant bail to the pe oner. Accordingly the pe oner (Saddam Hossain) be released on bail in connec on with the case arising out of FIR No.37/2023 registered at P.S. Raninagar, District Murshidabad. Appropriate bail condi on be imposed by the learned Trial Court."
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25. In Bijon SK @ Golam Murselim vs The State of West Bengal, Special Leave to Appeal (crl.) No.6046/2024, a three Bench of Supreme Court held as under:-
"1. The pe oner has been denied bail in connec on with FIR No 252 of 2022 dated 16 November 2022 lodged at PS Doulatabad, District Murshidabad under Sec ons 21(c), 22 (c) and 29 of the Narco c Drugs and Psychotropic Substances Act 1985. The allega on is that the pe oner was the owner of a truck which was alleged to be used for the transport of 9075 bo:les of Phensedyl.
2. The pe oner is in custody since 5 August 2023. Charges have been framed. The prosecu on proposes to examine 23 witnesses.
3. Considering the above facts and circumstances, an early conclusion of the trial does not seem possible. Conscious as the Court is of the provisions of Sec on 37 of the NDPS Act, we are of the view that the pe oner should be released on bail, subject to such terms and condi ons as may be imposed by the Special Court under NDPS Act, Berhampore, Murshidabad. Accordingly, the pe oner is directed to be released on bail, subject to such terms and condi ons as may be imposed by the Special Court under NDPS Act, Berhampore, Murshidabad in NDPS Case No 226 of 2022."
26. In ChiGa Biswas @ Subhas vs The State of West Bengal, Criminal Appeal No(s).245/2020 (@ SLP(Crl.) No. 8823/2019), the maGer before Hon'ble Supreme Court was 46 boGles of phensydryl cough syrup and the pe""oner was in custody from 10.08.2023.
27. Even in the present case, the quan"ty is a manufactured drug. Thus, given the ra"o of Chitra Basu's case (supra), the pe""oner is en"tled to bail.
28. Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage.
29. The pe""oner has been in custody since 10-08-2023. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega"ons, and the other factors peculiar to this case, there would be no jus"fiability 14 14 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 further pre-trial incarcera"on at this stage, subject to the compliance of terms and condi"ons men"oned in this order.
30. Without commen"ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men"oned above, the pe""oner makes a case for bail. This order shall come into force from the "me it is uploaded on this Court's official webpage.
31. Given above, provided the pe""oner is not required in any other case, the pe""oner shall be released on bail in the FIR cap"oned above subject to furnishing bonds to the sa"sfac"on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep"ng the surety, the concerned Court must be sa"sfied that if the accused fails to appear, such surety can produce the accused.
32. While furnishing a personal bond, the pe""oner shall men"on the following personal iden"fica"on details:
1. AADHAR number
2. Passport number (If available) and when the aGes"ng officer/court considers it appropriate or considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
33. This order is subject to the pe""oner's complying with the following terms.
34. The pe""oner shall abide by all statutory bond condi"ons and appear before the concerned Court(s) on all dates. The pe""oner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.
35. Given the background of allega"ons against the pe""oner, it becomes paramount to protect the drug detec"on squad, their family members, as well as the members of society, and incapacita"ng the accused would be one of the primary op"ons un"l the filing of the closure report or discharge, or acquiGal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric"on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc"on]. Given the nature of the allega"ons and the other circumstances peculiar to this case, the pe""oner shall surrender all weapons, firearms, and ammuni"on, if any, 15 15 of 16 ::: Downloaded on - 03-09-2024 22:59:57 ::: Neutral Citation No:=2024:PHHC:114775 CRM-M-32096-2024 along with the arms license to the concerned authority within fiOeen days from release from prison and inform the Inves"gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe""oner shall be en"tled to renew and take it back in case of acquiGal in this case, provided otherwise permissible in the concerned rules. Restric"ng firearms would ins"ll confidence in the vic"m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea"ng the offense.
36. The condi"ons men"oned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe""on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi"ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor"onal to the purpose of imposing them. The courts, while imposing bail condi"ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi"ons that would result in the depriva"on of rights and liber"es must be eschewed."
37. Any observa"on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
38. A cer"fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe""oner can download this order along with case status from the official web page of this Court and aGest it to be a true copy. If the aGes"ng officer wants to verify its authen"city, such an officer can also verify its authen"city and may download and use the downloaded copy for aGes"ng bonds.
39. Pe##on allowed in terms men"oned above. All pending applica"ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
30.08.2024
Jyo"-II
Whether speaking/reasoned: Yes
Whether reportable: No.
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