Punjab-Haryana High Court
Sanjeev Kumar vs State Of Haryana on 20 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:152370
1
CRM-M-52946-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-52946-2024
Reserved on: 07.11.2024
Pronounced on: 20.11.2024
Sanjeev Kumar ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. P.S. Sekhon, Advocate
for the petitioner.
Mr. Aashish Bishnoi, DAG, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections 579 01.11.2023 Sadar Fatehabad, 22-C/27-A of NDPS Act District Fatehabad
1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, seeking regular bail.
2. As per paragraph 11 of the bail petition, the accused declares that he has no criminal antecedents.
3. The facts and allegations are taken from the reply filed by the State. On Oct 31, 2023, based on prior information, the Police seized 65 vials (Bottles) of cough syrup, 100 ml each, from the possession of co-accused Jaswinder Kaur. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
4. During her custodial interrogation, the co-accused Jaswinder Kaur disclosed the petitioner as its seller. After that, the Investigator arrested the petitioner. During custodial interrogation, the petitioner allegedly made a disclosure statement, which led to the discovery of 60 villas (Bottles) of cough syrup, 100 ml each, along with the drug money.
5. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
6. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the 1 1 of 14 ::: Downloaded on - 22-11-2024 04:19:19 ::: Neutral Citation No:=2024:PHHC:152370 2 CRM-M-52946-2024 petitioner and their family.
7. State has referred to following portion of the reply, which reads as under:-
"7. That during investigation, petitioner-accused Sanjeev Kumar was produced in the court and three days police remand of petitioner-accused Sanjeev Kumar was obtained from the Ld. Illaqa Magistrate and during police remand, on 03.11.2023, petitioner-accused Sanjeev Kumar again suffered his disclosure statement at Bahadurgarh to the effect that "I lied about hiding the remaining Rs. 10000/- in my residential house in village Khairpur, whereas the truth is that I have hidden rupees 10000/- and 60 intoxicating vials of ONEREX COUGH SYRUP 100 ML Codeine Phosphate & Triprolidine Hydrochloride Syrup in the bushes growing on the canal near Amrik hotel and I can come with you and get recovered the same". In pursuance of his disclosure statement, petitioner-accused Sanjeev Kumar got demarcated the place at Bahadurgarh where he had sold 65 vials for Rs. 12,300/- to co-accused Jaswinder Kaur and also identified the place where he had purchased 125 vials of intoxicated medicines for Rs. 18,750/- from an unknown person. In pursuance of his disclosure statement, petitioner- accused accused Sanjeev Kumar also got recovered 60 intoxicated medicine vials of Onerex cough syrup and 10,000/- from the bushes as per his disclosure statement and same were taken into police possession vide separate seizure memo and sealed with seal 'RN'.
8. That during further course of investigation, on 10.11.2023, samples were sent to RFSL Hisar and report of FSL has been received in this. As per FSL report, 'Codeine & Triprolidine' has been detected. True copy of FSL report is annexed herewith as Annexure R-3 for the kind perusal of the Hon'ble High Court.
x x x x x
11. That during further investigation, FSL report has also been received in this case and as per FSL report, 'Codeine & Triprolidine' were detected from the contrabands sent to RFSL Hisar. True copy of RFSL Hisar is annexed herewith as Annexure R-4 for the kind perusal of the Hon'ble High Court."
8. It is also relevant to refer to para 12 & 16 of the reply, which read as follows:
"12. That during investigation, investigating agency obtained CDR etc. of mobile number 8750968529 used by the present petitioner-accused 2 2 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 3 CRM-M-52946-2024 Sanjeev Kumar and on perusal of CDR, it has been found that there are several conversations between present petitioner-accused Sanjeev Kumar and co- accused Jaswinder on 31.10.2023 i.e. the day when petitioner- accused Sanjeev Kumar called co-accused Jaswinder Kaur at Bahadurgarh Bus Stand for taking contraband.
x x x x
16. That role and evidence against the petitioner-accused is as under: -
(A). ROLE & CULPABILITY OF PETITIONER: -
i. There are serious allegations against the present petitioner-accused Sanjeev Kumar as in the present case, petitioner-accused Sanjeev Kumar had supplied 65 bottles of Wincirex cough syrup 100 ml Codeine Phosphate & Triprolidine Hydrochloride Syrup to co-accused Jaswinder Kaur @ Seema who was apprehended with said contraband. The weight of the contraband was 8.970 Kgs.
ii. Petitioner has been specifically named in the disclosure statement of co-accused Jaswinder Kaur @ Seema (arrested on spot). (B) INCRIMINATING EVIDENCES:
i. That co-accused Jaswinder Kaur @ Seema disclosed that recovered contraband were supplied to her by petitioner- accused Sanjeev Kumar and on the identification of co- accused Jaswinder Kaur, petitioner was arrested in the present case.
ii. During investigation, petitioner-accused Sanjeev Kumar also got recovered 60 bottles of Onerex cough syrup 100 ml Codeine Phosphate & Triprolidine Hydrochloride syrup and Rs. 10000/-. iii. There are several conversations between present petitioner-accused Sanjeev Kumar and co-accused Jaswinder on 31.10.2023 i.e. the day when petitioner- accused Sanjeev Kumar called co-accused Jaswinder Kaur at Bahadurgarh Bus Stand for taking contraband."
9. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.
10. However, the petitioner is entitled to bail because Hon'ble Supreme Court had granted bail on prolonged custody in the following judicial precedents:
1) In Chitta Biswas v. The State of West Bengal, CrA 245-2020, decided on February 7, 2020, Hon'ble Supreme Court holds, 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.3
3 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 4 CRM-M-52946-2024 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.
2) In Rajib Dey v. The State of West Bengal, decided on 20 Jan 2023, SLP (Crl) 8895-2022, Hon'ble Supreme Court holds, [2]. The petitioner seeks his enlargement on regular bail in a Case arising out of FIR No.341/2021, dated 06.12.2021, registered at Tahirpur Police Station, District Nadia, West Bengal, under Section 21(c) of the NDPS Act and Section 25/27 of the Arms Act. As per the allegation, 30 bottles of phensedyl syrup containing codeine phosphate were recovered from the petitioner. There are no criminal antecedents of the petitioner. The petitioner is in custody since 18.02.2022. The charges have already been framed and the trial has commenced but conclusion thereof will take some time.
[3]. Keeping in view all the attending circumstances but without expressing any views on the merits of the case, the petitioner is directed to be released on bail subject to his furnishing bail bonds to the satisfaction of the Trial Court.
3) In Ismaul Sk v. State of West Bengal, decided on 02 Jan 2024, MANU/SCOR/00506/2024, Hon'ble Supreme Court holds, The appellant has undergone incarceration for a period of 1 year and 10 months. The allegation is that 50 bottles containing Phensedyl cough syrup were recovered from the appellant. Another issue is of violation of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Considering the facts of the case and particularly in view of the fact that the trial has hardly made any progress in the sense that only one prosecution witness has been partly examined, the appellant deserves to be enlarged on bail.
Criminal Appeal @ SLP(Criminal)No.14827/2023 Page 1 of 4 For that purpose, the appellant shall be produced before the Trial Court within a period of one week from today. The Trial Court shall enlarge the appellant on bail on appropriate terms and conditions, including the condition of regularly attending the Trial Court and cooperating with the Trial Court for early disposal of the case. The appeal is accordingly allowed.
4) In Najrul Islam @ Najbul Hoque vs The State of West Bengal, decided on 03 Jan 2024, MANU/SCOR/00264/2024, Hon'ble Supreme Court holds, The counsel for the petitioner would submit that the petitioner was arrested on 19.11.2022 in connection with the case arising out of FIR No.477/2022 and the High Court rejected bail for the petitioner under the impugned order on 06.07.2023. It is also pointed out that the 100 bottles of Phensedyt Syrup containing codiene phosphate were seized in the case. Mr. Gupta would then 4 4 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 5 CRM-M-52946-2024 advert to various bail orders passed by this Court in cases with similar kind of contraband.
Admittedly, charges are yet to be framed and the trial is unlikely to conclude in near future. The State counsel by way of explanation 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 incarceration of the petitioner for over a year in connection with the contraband in question, we deem it appropriate to grant bail to the petitioner. Accordingly, the petitioner (Najrul Islam Najbul Hoque) be released on bail. Appropriate terms and conditions for bail is to be imposed by the learned Trial Court
5) In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal, decided on 03 Jan 2024, MANU/SCOR/00327/2024, Hon'ble Supreme Court holds, [2]. The allegations are that the petitioner along with other accused persons were found in possession of two plastic bags a cough containing a total of 10,000 ml. of codeine phosphate narcotic substance. It further syrup, which is notified as a narcotic substance. It further appears from the contents of the FIR that the petitioner, who was found in conscious possession of two white plastic 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 investigation is complete and the chargesheet has been filed, however, the charges are yet to be framed. The prosecution proposes to examine 10 witnesses. The conclusion of trial will, thus, take considerable time. The petitioner 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 narcotic substance allegedly recovered from the petitioner's possession is of commercial quantity' and, as such, the rigors of Section 37 of the NDPS Act are attracted. We have considered the submission.
[5]. Taking into consideration the period already undergone by the petitioner in custody; the fact that he does not have any criminal antecedents and also keeping in view that the prolonged incarceration will not serve the cause of substantial justice, however, without expressing any views on the merits of the case, we are inclined to release the petitioner on bail at this state. The petitioner is, accordingly, directed to be released on bail subject to the following directions: ...
6) In Subhashri Das @Rana @ Subhoshree v. The State of West Bengal, decided on 05 Jan 2024, MANU/SCOR/02185/2024, Hon'ble Supreme Court held as under:-
The accusation is that the petitioner was found in possession of 60 bottles of Phensedyl Syrup (100 ml in each bottle). The charge sheet was filed on 31.8.2022. The petitioner has been in custody 5
5 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 6 CRM-M-52946-2024 since 12.3.2022. The application for bail filed by the petitioner was rejected by the High Court and hence this special leave petition. Heard learned counsel for the petitioner and also counsel for the Respondent-State. Taking note of the nature of the accusation and the fact that the petitioner is in custody since 12.3.2022, we are of the considered view that the petitioner can be ordered to released on bail subject to the terms and conditions to be imposed by the Trial Court. Ordered accordingly. The petitioner shall be produced before the Trial Court forthwith for compliance with the order."
7) In Indrajit Mondal @ Piglu v. The State of West Bengal, SLP (Crl.) No(s). 8512-2023, decided on 25 Jan 2024, Hon'ble Supreme Court holds, [1]. The petitioner is in custody since 17 August 2021.
[2]. FIR No 355 of 2021 was registered at PS Murshidabad for offences punishable under Sections 21(c) and 29 of the Narcotic Durgs and Psychotropic Substances Act 1985. The allegation is that the petitioner 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 petitioner, 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 prosecution proposes to examine seventeen witnesses.
[5]. The petitioner 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 petitioner on bail subject to such terms and conditions as may be imposed by the Special Court under NDPS Act-cum-ADJ, Second Court Berhampore, Murshidabad in connection with NDPS Case No 166 of 2021. Ordered accordingly.
8) In Saiful Islam v. The State of West Bengal, decided on 14 Feb 2024, MANU/SCOR/60244/2024, Hon'ble Supreme Court holds, [3]. The counsel would point out that the petitioner is in custody for over two years since he was arrested on 08.01.2022. It is then submitted SLP (CRIMINAL) Diary No(s).39202/2023 that the contraband in question is 112 bottles of Phensedyl Syrup containing codeine phosphate.
[4]. Since bail in similar circumstances was allowed by this Court, following the orders enclosed to the petitioner, we deem it appropriate to grant bail to the petitioner. Accordingly the petitioner (Saiful Islam) be released on bail in connection with the case arising out of FIR No.16/2022. Appropriate bail condition be imposed by the learned Trial Court.
9) In Debrata Mondal vs State of West Bengal, Decided on 15 Feb 2024, MANU/SCOR/23288/2024, Hon'ble Supreme Court held as under:-
[3]. Going by the allegations, 290 bottles of phensedyl syrup was recovered from the possession of the petitioner and the co-accused. The fact is that the co-accused was 6
6 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 7 CRM-M-52946-2024 enlarged on bail by the High Court. The petitioner is in custody since 10.01.2022. Taking into account the aforesaid aspects, we are of the considered view that the petitioner can be enlarged on bail, subject to the terms and conditions to be imposed by the Trial Court. Ordered accordingly. In that regard, the petitioner shall be produced before the Trial Court, forthwith."
10) In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal, MANU/SCOR/29168/2024, Decided on 26 Feb 2024, the Hon'ble Supreme Court holds, Heard learned counsel for the appellant in support of the petition 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 submitted that a huge quantity 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.
11) In SK. Nasiruddin @ Nasirddin SK. Vs State of West Bengal, decided on 06 Mar 2024, MANU/SCOR/34261/2024, the Hon'ble Supreme Court holds, [4]. The appellant is charged for the offence(s) punishable under Section 21(C)/29 of the NDPS Act, 1985 and seeks his enlargement on regular bail in a Case arising out of FIR No. 219 of 2022 dated 12.04.2022, registered at P.S. Raghunathganj, Jangipur Police District, Murshidabad, West Bengal.
[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. 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 time. It is also submitted that the appellant does not have any criminal antecedents. It is also brought to our notice that the High Court while rejecting the regular bail application 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 mentioned in the FIR.
[6]. Keeping in view all the attending circumstances but without expressing any views on the merits of the case, we are inclined to grant bail.
12) In Indadul Shah vs The State of West Bengal, decided on 20 Mar 2024, MANU/SCOR/42687/2024, Hon'ble Supreme Court holds, 7 7 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 8 CRM-M-52946-2024 The petitioner was arrested on 27.10.2022 in furtherance of an FIR dated 27.10.2022 for offences punishable under Section 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He was found in possession of 70 bottles of 100 ml. Phensedyl. We notice 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 time. There are no criminal antecedents involving the petitioner herein. Considering the facts and circumstances, we are inclined to grant bail. The petitioner is directed to be released on bail in connection with FIR No. 334 of 2022 registered at Police Station Jalangi District Murshidabad subject to such terms and conditions as may be imposed by the Trial Court.
13) In Hanef Kharsani @ Hanef Sheikh vs Union of India, decided on 08 Apr 2024, MANU/SCOR/49775/2024 the Hon'ble Supreme Court holds, 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 Sections 8 (c) and 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act'). The appellant preferred an application under Section 439 of the Code of Criminal Procedure, 1973 before the High Court seeking bail in the instant crime. The High Court noted that the narcotic substance i.e. 415 bottles of Phensedyl Syrup containing codeine phosphate which is above commercial quantity was recovered from the appellant and in view of the statutory restrictions under Section 37 of the NDPS Act, the application seeking bail was rejected. It is submitted by the learned counsel for the appellant that the appellant was not in conscious possession of the offending material and that the prosecution 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 identical 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 notice the fact that on completion of the investigation, 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 submitted that this is not a fit case for grant of bail inasmuch as the quantity which has been recovered is over and above the commercial quantity 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 application seeking bail may be dismissed.
Considering the facts on record, in our view, the case for bail is made out."
14) In Nijam Sheikh @ Md. Nijam SK @ MD Nizam SK v. The State of West Bengal, decided on 15.04.2024, MANU/SCOR/52031/2024, the Hon'ble Supreme Court holds, 8 8 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 9 CRM-M-52946-2024 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 Station Lalgola, District Murshidabad, under Section 21(C)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act' for short). The High Court noted that the narcotic substance i.e. 55 bottles of phensedyl syrup containing codeine phosphate which is above commercial quantity was recovered from the appellant and in view of the statutory restrictions under Section 37 of the NDPS Act, the application seeking bail was rejected.
Heard learned counsel for the appellant and counsel for the respondent-State.
It is submitted by the learned counsel for the appellant that the appellant was not in conscious possession of the offending material and that the prosecution has not complied with the requirements of Section 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 submitted that recording of evidence is to be commenced from tomorrow (i.e. 16.04.2024) and there are only eight (08) witnesses as per the charge sheet and the trial would be completed expeditiously. Therefore, at this stage, the appellant need not be released on bail.
It was further submitted that the other seven (07) co-accused who were granted bail, are not cooperating 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."
15) In Mohidul Sarkar v. The State of West Bengal, decided on 19 Apr 2024, SLP (Crl) 15668- 2023, Hon'ble Supreme Court holds, [2]. Notice in this case was issued on 29.11.2023 with the following order:
"xx xx xx The counsel submits that the petitioner is in custody since 14.09.2022 for about 14 months. He then points out that the contraband in question is Phensedyl Syrup containing codeine phosphate and around 320 bottles of the syrup was recovered. The petitioner's counsel submits that notice in similar matter was issued on 13.10.2023 in the SLP (Crl.) Diary No.39063/2023. Issue notice, returnable in three weeks. Dasti notice on the Standing Counsel for the State, in addition."
[3]. Having considered the duration of custody and the nature of Contraband i.e., 320 bottles of Phensedyl Syrup seized from the petitioner, we deem it appropriate to grant bail to the petitioner - Mohidul Sarkar in connection 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 are also noted. Appropriate bail conditions be imposed by the learned Special Court, Murshidabad. It is ordered accordingly.
16) In Ripon Seikh v. State of West Bengal, decided on 19 Apr 2024, 9 9 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 10 CRM-M-52946-2024 MANU/SCOR/56447/2024, Hon'ble Supreme Court holds, [4]. On the other hand, having regard to the duration of custody since the petitioners were arrested on 23.11.2022 and the nature of Contraband i.e., 73 bottles of Phensedyl Syrup containing Codeine Phosphate recovered from the joint possession of the four accused, we deem it appropriate to grant bail to the petitioners Ripon Seikh, Sahin Seikh and Babu Sk, in connection with FIR No. 310 of 2022 registered at P.S. Sagarparara, District Murshidabad. Appropriate bail conditions be imposed by the learned Special Court, Murshidabad. It is ordered accordingly.
17) In Saniya Bibi @ Soniya Bibi vs The State of West Bengal, decided on 26 Apr 2024, MANU/SCOR/56979/2024, Hon'ble Supreme Court holds, [3]. Mr. Dibyadyuti Banerjee for the petitioner points out that the Contraband in question is 105 bottles of Phensedyl Syrup and the petitioner, 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]. Notice in this case was issued on 04.03.2024 and today the State counsel prays for time to file counter affidavit. [5]. Having considered the circumstances and more particularly the duration of custody, the nature of the Contraband and the unlikely possibility of the trial getting concluded on an early date, we deem it appropriate to grant bail to the petitioner Saniya Bibi@ Soniya Bibi in connection with the FIR No. 30 of 2022 dated 24.01.2022 registered with P.S. Jalangi, District Murshidabad. It is ordered accordingly. Appropriate bail conditions be imposed by the learned trial court.
18) In Saddam Hossain vs State of West Bengal, decided on 03 May 2024, MANU/SCOR/62782/2024, Hon'ble Supreme Court holds, [2]. Notice 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 bottles of 100 ml Phensedyl Syrup were seized and since each 5 ml contains 10 mg of codiene phosphate, the total quantity of codeine phosphate in the 72 bottles would be around 14.4 grams. Such quantity is below the stipulated commercial quantity in the Schedule to the NDPS Act. It is further pointed out that the petitioner has been in custody for 10 months and charges are yet to be framed in the matter.
Issue notice on the plea for bail, returnable in four weeks. Dasti notice on the standing Counsel for the State, in addition."
[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 particularly the nature of the contraband and the long custody of the petitioner since 23.01.2023, we deem it appropriate to grant bail to the petitioner. Accordingly the petitioner (Saddam Hossain) be released on bail in 10 10 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 11 CRM-M-52946-2024 connection with the case arising out of FIR No.37/2023 registered at P.S. Raninagar, District Murshidabad. Appropriate bail condition be imposed by the learned Trial Court."
19) Mithun SK v The State of West Bengal, decided on 17 May 2024, MANU/SCOR/71191/2024, 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 Station Sagarpara, District Murshidabad, under Section 21(C)/29 of the NDPS Act, 1985. The High Court noted that the narcotic substance i.e. 388 bottles of phensedyl syrup containing codeine phosphate which is above commercial quantity was recovered from the appellants and in view of the statutory restrictions under Section 37 of the NDPS Act, the application seeking bail was rejected.
Heard learned counsel for the parties.
We have perused the counter affidavit filed by the respondent- State.
It is submitted by the learned counsel for the appellant(s) that the appellants were not in conscious possession of the offending material and that the prosecution has not complied with the requirements of Section 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 submitted 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."
20) In Bijon SK @ Golam Murselim v. The State of West Bengal, decided on 08 Jul 2024, SLP (Crl) 6046-2024, a three Bench of Supreme Court holds, [1]. The petitioner has been denied bail in connection with FIR No 252 of 2022 dated 16 November 2022 lodged at PS Doulatabad, District Murshidabad under Sections 21(c), 22 (c) and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985.
The allegation is that the petitioner was the owner of a truck which was alleged to be used for the transport of 9075 bottles of Phensedyl.
[2]. The petitioner is in custody since 5 August 2023. Charges have been framed. The prosecution 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 Section 37 of the NDPS Act, we are of the view that the petitioner should be released on bail, subject to such terms and conditions as may be imposed by the Special Court under NDPS Act, Berhampore, Murshidabad. Accordingly, the petitioner is directed to be released on bail, subject to such terms and conditions as may be imposed by the Special Court under NDPS Act, Berhampore, Murshidabad in NDPS Case No 226 of 2022."
21) In Alamgir Sk. @ Alam Sk. @ Alomgir Sk. v. State of West Bengal, decided 11 11 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 12 CRM-M-52946-2024 on 12 Aug 2024, SLP (Crl.) 15176-2023, Hon'ble Supreme Court holds, The petitioner is an accused for the offences punishable under Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act. It is alleged that 99 bottles of phensedyl syrup were recovered from him. His bail application was dismissed by the High Court. He has already undergone about 1 year and 10 months in jail.
Heard learned counsel for the petitioner and the State.
Under these circumstances of this case, we are of the opinion that a case of bail is made out for the petitioner.
22) In Dhananjoy Mondal v. The State of West Bengal, decided on 03 Sep 2024, SLP (Crl.) 6526-2024, [2]. The petitioner was arrested on 15.12.2022 and by now, he has been in custody for 1 year 9 months. The Contraband in question is 100 bottles of Phensedyl Syrup.
[4]. Having considered the above and the fact that the petitioner was granted bail in all the three cases mentioned in paragraph 7 of the State's counter affidavit and looking at the nature of the Contraband in the present case, we deem it appropriate to grant bail to the petitioner - Dhananjoy Mondal. It is ordered accordingly. Appropriate bail conditions be imposed by the learned trial court. The petitioner is entitled to bail on prolonged custody because the Hon'ble Supreme Court has granted bail on prolonged custody in the following cases:
11. As per the custody certificate dated 06.11.2024, the petitioner's custody in this FIR is of 01 year & 01 day.
12. 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 Act1.
13. In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 3047-
2024, Hon'ble Supreme Court holds, [5]. We are inclined to set aside the impugned order only on the premise that right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarceration for more than one and a half years, the trial is yet to start, though, it is submitted by learned counsel appearing for the State that charges have been framed. Suffice it is to state that trial would take considerable length of time. There is no antecedent involving the appellant.
[6]. Accordingly, the impugned order is set aside and the appellant is granted bail, subject to the conditions that may be imposed by the Trial Court.
1Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 12 12 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 13 CRM-M-52946-2024
14. There is prima facie evidence connecting the petitioner to the crime. Given the drugs were medicines that attracted violation of S. 22 of NDPS Act, viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order.
15. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage.
16. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused.
17. While furnishing a personal bond, the petitioner shall mention the following personal identification details:
1. AADHAR number
2. Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
18. The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner 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.
19. Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian 13 13 of 14 ::: Downloaded on - 22-11-2024 04:19:20 ::: Neutral Citation No:=2024:PHHC:152370 14 CRM-M-52946-2024 Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense.
20. The conditions mentioned 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 Petition (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 conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed."
21. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
22. A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
23. Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 20.11.2024 anju rani Whether speaking/reasoned: Yes Whether reportable: No. 14 14 of 14 ::: Downloaded on - 22-11-2024 04:19:20 :::