Punjab-Haryana High Court
Suraj Kumar @ Suraj vs State Of Punjab on 17 August, 2023
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2023:PHHC:106162
CRM-M-39120-2023 [1] 2023:PHHC:106162
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-39120-2023
Date of decision: 17.08.2023
Suraj Kumar @ Suraj
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Gopal Singh Nahel, Advocate for the petitioner.
Mr.Rohit Bansal, Sr.DAG, Punjab.
****
VIKAS BAHL, J. (ORAL)
1. This is the second petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR No.109 dated 25.07.2021, under Section 21/21-C, 29, 61, 85 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "NDPS Act"), registered at Police Station STF District STF Wing.
2. Learned counsel for the petitioner has submitted that the petitioner is in custody since 25.07.2021 and the investigation is complete and challan has been presented and there are 17 prosecution witnesses, out of which, only 3 witnesses have been examined and thus, trial is likely to take time. It is further submitted that the previous bail application of the petitioner was dismissed as withdrawn at that stage on 22.12.2022 and thereafter, sufficient period of time has elapsed and yet the trial has not been 1 of 8 ::: Downloaded on - 19-08-2023 04:35:12 ::: Neutral Citation No:=2023:PHHC:106162 CRM-M-39120-2023 [2] 2023:PHHC:106162 concluded. It is further submitted that further incarceration would be violative of the right of the petitioner enshrined under Article 21 of the Constitution of India. Learned counsel for the petitioner has relied upon various orders of the Hon'ble Supreme Court, wherein, solely on the basis of the length of the custody period, the concession of bail has been granted. Reliance has been placed upon an order of the Hon'ble Division Bench of this Court in CRM-3773-2019 in CRA-D-198-DB-2017 in case titled as "Bhupender Singh Vs. Narcotic Control Bureau".
3. On the other hand, learned State counsel has opposed the present petition for grant of regular bail to the petitioner but has not disputed the above-said facts, although, it has been submitted that the recovery in the present case is of commercial quantity and thus, bar under Section 37 of the NDPS Act would apply in the present case. It is further submitted that one witness has been given up and thus, 13 witnesses are yet to be examined. It is stated that the petitioner is involved in one more case under the NDPS Act.
4. Learned counsel for the petitioner, in rebuttal, has submitted that the other case under the NDPS Act was with respect to small quantity and the petitioner has already undergone the sentence and has relied upon the judgment of Hon'ble Supreme Court in "Maulana Mohd. Amir Rashadi vs. State of U.P. and another", reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in another case. The relevant portion of the said judgment is reproduced hereinbelow:-
2 of 8 ::: Downloaded on - 19-08-2023 04:35:13 ::: Neutral Citation No:=2023:PHHC:106162 CRM-M-39120-2023 [3] 2023:PHHC:106162 "As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."
5. This Court has heard learned counsel for the parties and has gone through the paper-book.
6. The Hon'ble Supreme Court in case titled as "Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, vide order dated 22.08.2022 passed in Special Leave to Appeal (Crl.) No.5530-2022 was pleased to observe 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."
The above-said case was a case under the NDPS Act 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 Hon'ble Supreme Court had observed that the concession of bail was being granted to the petitioner (therein) only on the ground that he had spent about two years in custody and that the conclusion of trial will take some time.
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Neutral Citation No:=2023:PHHC:106162
CRM-M-39120-2023 [4] 2023:PHHC:106162
7. Hon'ble Supreme Court in Criminal Appeal No.245/2020 titled as "Chitta Biswas Alias Subhas Vs. The State of West Bengal", vide order dated 07.02.2020, 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 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 connection with Criminal Case No.146 of 2018 registered with Taherpur 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 phensydryl cough syrup containing 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 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."
8. In another case i.e., Criminal Appeal No.1169 of 2022 titled as "Gopal Krishna Patra @ Gopalrusma Vs. Union of India,", vide order 4 of 8 ::: Downloaded on - 19-08-2023 04:35:13 ::: Neutral Citation No:=2023:PHHC:106162 CRM-M-39120-2023 [5] 2023:PHHC:106162 dated 05.08.2022, the Hon'ble 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-AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The application seeking relief of bail having been rejected, the instant appeal has been filed.
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 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."
A perusal of the above-said order would show that in the said case, the custody of the accused was approximately 2 years, 1 month and 17 days and the case was under the NDPS Act and primarily, considering the longevity of the custody period, concession of bail was granted to the petitioner (therein).
9. The Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.) No.5769/2022 titled as "Nitish Adhikary @ Bapan Vs. The 5 of 8 ::: Downloaded on - 19-08-2023 04:35:13 ::: Neutral Citation No:=2023:PHHC:106162 CRM-M-39120-2023 [6] 2023:PHHC:106162 State of West Bengal", vide order dated 01.08.2022, was pleased to observe 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 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 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."
A perusal of the said order would also show that the said case was under the NDPS Act and the provision of Section 37 of the NDPS Act were also mentioned in the same and the bail was granted primarily by considering the petitioner (therein) had undergone custody for a period of 01 year and 07 months and only one witness had been examined and that the petitioner (therein) did not have any criminal antecedents.
10. The Hon'ble Division Bench of this Court in Bhupender Singh's case (supra), vide a detailed judgment dated 12.01.2022, had also held that in case, the accused person is able to make out a case within the parameters of Article 21 of the Constitution of India on the basis of period 6 of 8 ::: Downloaded on - 19-08-2023 04:35:13 ::: Neutral Citation No:=2023:PHHC:106162 CRM-M-39120-2023 [7] 2023:PHHC:106162 of custody, then he deserves the concession of regular bail, even in the face of rigors of Section 37 of the NDPS Act.
11. In the present case, the petitioner is in custody since 25.07.2021 and the investigation is complete and challan has been presented and out of 17 prosecution witnesses, 13 witnesses are yet to be examined and thus, the conclusion of trial is likely to take time and keeping the petitioner in further incarceration would be violative of his right enshrined under Article 21 of the Constitution of India.
12. Keeping in view the above-said facts and circumstances as well as the law laid down in the above-said judgments, the present petition is allowed and the petitioner is directed to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to him not being required in any other case. The petitioner shall also abide by the following conditions:-
a). The petitioner will not tamper with the evidence during the trial.
b). The petitioner will not pressurize / intimidate the prosecution witness(s).
c). The petitioner will appear before the trial Court on the date fixed, unless personal presence is exempted.
d). The petitioner shall not commit an offence similar to the offence of which he is accused of, or for commission of which he is suspected.
e). The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with 7 of 8 ::: Downloaded on - 19-08-2023 04:35:13 ::: Neutral Citation No:=2023:PHHC:106162 CRM-M-39120-2023 [8] 2023:PHHC:106162 the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
f). Since, the petitioner is a resident of U.P., thus, the petitioner would be released on bail only on furnishing at least one local surety.
13. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of bail before this Court.
14. Nothing stated above shall be construed as a final expression of opinion on the merits of the case and the trial Court would proceed independently of the observations made in the present case which are only for the purpose of adjudicating the present bail petition.
(VIKAS BAHL) JUDGE August 17, 2023.
Davinder Kumar
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
Neutral Citation No:=2023:PHHC:106162
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