Punjab-Haryana High Court
Lakhwinder Singh @ Kali vs State Of Punjab on 27 September, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:128914
2024:PHHC:128914
[208] IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-47767-2024(O&M)
Date of Decision : 27.09.2024
Lakhwinder Singh @ Kali ...Petitioner
versus
State of Punjab ....Respondent
Coram : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Puneet Kumar Bansal, Advocate
for the petitioner.
Mr. Solomon Partap Singh, AAG, Punjab.
***
PANKAJ JAIN, J. (ORAL)
[1] This first petition has been filed under Section 483 B.N.S.S. for grant of regular bail in case FIR No.48 dated 06.06.2022 registered under Sections 22 & 29 of NDPS Act, 1985 at Police Station Ghall Khurd, District Ferozepur, Punjab.
[2] As per the case of the prosecution, it was alleged as under:-
"Station house officer Police Station Ghall Khurd Sat Sri Akal. They i.e. ASI along with ASI Rajinder Singh No. 102/FZR, ASI Darshan Singh No. 795/FZR, PHG Paramjit Singh 5835 were going on government vehicle Bolero number PB 05 L-5690 which was driven by C Kawaljeet Singh No. 232 for patrolling and checking of suspicious persons from FirozShah. Ittanwalietc and while patrolling when Police party reached road from village Karmuwala to village Bhangaali in between the rivers of Sirhand feeder and Rajasthan feeder then from ahead from village Bhangaali one motorcycle without any number On which 3 Hindu gentleman were seen coming who on seeing the vehicle of Police got frightened and turned their motorcycle on the left-hand side towards the river and the motorcycle fell after slipping and at this 1 of 9 ::: Downloaded on - 02-10-2024 21:56:05 ::: Neutral Citation No:=2024:PHHC:128914 2024:PHHC:128914 CRM-M-47767-2024 (O&M) -2- time the person sitting in the middle threw on left side the green colored polythene bag which he was holding in his right hand. I ASI after stopping the vehicle apprehended these 3 persons with the help of companions and asked the name and address. Then the person driving the motorcycle told his name as Akashdeep @Daara son of Balwinder Singh @ Binder son of Faqir Singh resident of village Karmuwala, the persons sitting in the middle and who threw the polythene told his name as Jaskaaran Singh @ Katta son of Gurdev Singh @ Kaku son of Sukhmander Singh resident of village Karmuwala, and the person sitting behind told his name as Lakhwinder Singh @kali son of Jagseer Singh son of Suba Singh resident of Karmuwala. On my asking Jaskaran Singh @ katta told that there are intoxicating tablets and money recovered from the sale of tablets in the polythene thrown by him. Then Jaskaran Singh @ Katta was brought near to the polythene thrown by him who after picking up the green colouredtransparentpolythene thrown by him presented the same in which opened intoxicating tablets and money can be seen. On opening the green coloured polythene and counting the tablets there were 1020 intoxicating tablets. After putting these intoxicating tablets in the same polythene and preparing the parcel of Cloth, it was sealed with my seal of LS. Sample seal was prepared separately on paper. After counting the intoxicating tablets found in the policy and on counting the money 500 147000 and 100*5500 total 7500 were recovered of Indian currency. After putting the drug money of 7500 in the plastic box, parcel was prepared and was sealed with my seal of LS. Seal after use was handed over to ASI Rajinder Singh No. 102/FZR. On checking the motorcycle without number Make hero HF Deluxe no document was found in relation to the motorcycle and also no objectionable material was found. Recovered article of loose intoxicating tablets and drug money of 7500 which were sealed and motorcycle Hero HF Deluxe without any number Were taken in Police custody through separate recovery memos. Accused Jaskaaran Singh @ Katta, Akashdeep @ Daara and Lakhwinder Singh @ kali above said by keeping in possession 1020 intoxicating tablets have committed the offence under
2 of 9 ::: Downloaded on - 02-10-2024 21:56:05 ::: Neutral Citation No:=2024:PHHC:128914 2024:PHHC:128914 CRM-M-47767-2024 (O&M) -3- section 22/29/61/85 of NDPS act. Ruqa is being sent through PHG Paramjit Singh No. 5385 to the Police Station for registration of case. After registration of case, the case number Be informed. PCR be informed, special reports be issued. I along with companions and busy at the spot for investigation. CorrecyLakhvinder Singh ASI PS Ghall Khurd Date 6/6/22."
[3] Learned counsel for the petitioner submits that in fact it is a case wherein nothing has been recovered from the present petitioner who was driving the motorcycle. Possession of the narcotic substance, if any, even as per the contents of the FIR has been attributed to one Jaskaran Singh @ Katta.
[4] Custody certificate dated 26.09.2024 on behalf of State 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 2 years, 3 months&17 days and has clean antecedents.
[5] Despite the fact that the charges were framed way back in March, 2023, only 02 out of 05 prosecution witnesses have been examined by the prosecution till date and that too, when majority of the witnesses are official.
[6] 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 Ist condition stands complied with.
3 of 9 ::: Downloaded on - 02-10-2024 21:56:05 ::: Neutral Citation No:=2024:PHHC:128914 2024:PHHC:128914 CRM-M-47767-2024 (O&M) -4- So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the peti- tioner 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 condi- tional liberty must override the statutory embargo created un- der Section 37(1)(b)(ii) of the NDPS Act." [7] Earlier to Rabi Prakash's case supra also Apex Court has con- sistently held that the prolonged incarceration has to be considered dehors bar contained under Section 37 of the NDPS Act. The Supreme Court in or- der dated 22.08.2022 passed by the Supreme Court in Special Leave to Ap- peal (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."
4 of 9 ::: Downloaded on - 02-10-2024 21:56:05 ::: Neutral Citation No:=2024:PHHC:128914 2024:PHHC:128914 CRM-M-47767-2024 (O&M) -5- [8] 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 ob- served 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 conclu- sion of trial will take some time.
[9] 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 conces- sion 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 connec- tion with Criminal Case No.146 of 2018 registered with Taher- pur 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 phensy- dryl cough syrup containing codeine mixture above commercial quantity.
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CRM-M-47767-2024 (O&M) -6-
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.
(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 di-
rections, the appeal stands allowed."
[10] 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 ob- serve 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 Psycho- tropic Substances Act, 1985.
The application seeking relief of bail having been rejected, the instant appeal has been filed.
6 of 9 ::: Downloaded on - 02-10-2024 21:56:05 ::: Neutral Citation No:=2024:PHHC:128914 2024:PHHC:128914 CRM-M-47767-2024 (O&M) -7- We have heard Mr. Ashok Kumar Panda, learned Senior Ad- vocate in support of the appeal and Mr. Sanjay Jain,learnedAdditional 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 im- pose.
(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." [11] In order dated 01.08.2022 passed by the Supreme Court in Spe- cial 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 ap- pearance 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 pe- titioner 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.
7 of 9 ::: Downloaded on - 02-10-2024 21:56:05 ::: Neutral Citation No:=2024:PHHC:128914 2024:PHHC:128914 CRM-M-47767-2024 (O&M) -8- Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without ex- pressing 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." [12] Learned State counsel is not in a position to dispute the afore- mentioned factual assertions based on record. [13] I have heard learned counsel for the parties and have gone through the records of the case.
[14] Without commenting on the merits of the case, considering the period of custody already spent by petitioner, the present petition is allowed. The petitioner is ordered to be released on bail on his furnishing bail/surety bonds to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned. 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 do- cumentary 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 number without per- mission of the trial Court.
(vii) The petitioner shall not in any manner try to delay the trial. [15] 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.
[16] Ordered accordingly. [17] Needless to say that anything observed herein shall not be con-
strued to be an opinion on the merits of the case.
(PANKAJ JAIN)
JUDGE
27.09.2024
'R. Sharma'
Whether speaking/ reasoned : Yes/No
Whether reportable : Yes/No
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