High Court of Punjab and HaryanaCRM-M/5439/2024allowed

Rajan Sharma v. State Of Punjab

2024-02-08Mr. Justice Pankaj Jain10 pages

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Present:

Mr. Lakshay Bector, Advocate for Mr. Akshay Chadha, Advocate for the petitioner.

Mr. Iqbal Singh Mann, DAG, Punjab.

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56)7-89 1.

Present petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case bearing FIR No.79 dated 03.05.2022, registered for the offences punishable under Section 22 of the NDPS Act, 1985 (Section 29 of the NDPS Act, 1985 added later on) at Police Station Samrala, Police District Khanna, District Ludhiana. 2.

Counsel for the petitioner has relied upon order passed by this Court in CRM6M65204862023 dated 05.12.2023 whereby co6accused Rahul Sharma was granted regular bail observing as under:6 1.

This petition has been filed under Section 439 Cr.P.C. for grant of regular bail in case F.I.R. No.79 dated 03.05.2022 registered under Section 22 of the NDPS Act (Section 29 of NDPS Act was added lateron) at Police Station Khanna, District Ludhiana, Punjab.

On 15.11.2023, the following order was passed:6 "Ld. Senior Counsel representing the petitioner has drawn attention of this Court to the report received from Regional Testing Forensic Science Laboratory, Ludhiana placed on record as Annexure P62 which shows that Parcel 'B' contained 180 white colored tablets in 18 strips (10 tablets in one strip) each labelled as Trakem6100. It is being contended by him that as per the prosecution the sample sent was of 200 tablets i.e. 20 strips (10 tablets in one strip) each. Reliance is being placed upon order passed by Sub6 Divisional Magistrate, Samrala, dated 04.05.2022 under Section 526A of the NDPS Act which reads as under :

"1. Today accused persons namely Rajan Sharma and Rahul Sharma produced before me being llaqa Magistrate along with case property being for it's certification under section 526A of Narcotics & Psychotropic Substances Act.

2. The case property includes two bags containing TRAKEM6100 (Tramadol hydrochloride) containing quantity as under:6 (a) First bag 6 250 boxes each box containing 20 strips. Each strip of 10 tablets i.e. total 50,000 tablets (Tramadol). (b) Second bag 6 200 boxes each containing 20 strips. Each strip of 10 tablets i.e, total 40,000 tablets (Tramadol) The seals are intact and are sealed with seals bearing impressions "SS", "HS" and "GS". Sample seals are also produced. Bag containing 250 boxes i.e. total 50,000 tablets (tramadol) derived from Rajan Sharma and Bag containing 200 boxes i.e. total 40,000 tablets (tramadol) derived from Rahul Sharma.

3. The seals of two main parcels/bags were broken and followings samples are being drawn in the presence of the undersigned:6 (i) Sample derived from Rajan Sharma:6 (a) One box containing 20 strips containing 10 tablets each i.e. total 200 tablets (Tramadol), marked as A (b) One box containing 20 strips containing 10 tablets each i.e. total 200 tablets (Tramadol), marked as A61 (ii) Sample derived from Rahul Sharma;6 (а) One box containing 20 strips containing 10 tablets each i.e. total 200 tablets (Tramadol), marked as B (b) One box containing 20 strips containing 10 tablets each i.e. total 200 tablets (Tramadol), marked as B61 The samples were sealed accordingly and were put in four white cloth bags and sealed with the seal of the undersigned bearing impression "MD".

4. The remaining quantity in both main parcels comes to be as under:6 (a) First bag 6 248 boxes each containing 20 strips. Each strip of 10 tablets i.e. total 49,600 tablets (Tramadol).

(b) Second bag 6 198 boxes each containing 20 strips. Each strip of 10 tablets i.e. total 39,600,tablets (Tramadol).

and both the main parcels are again re6sealed

with seal of the undersigned bearing impression "MD". The seals are checked and are intact.

5. The sample seal of the undersigned bearing impression "MD" was also prepared, attested and handed over to Inspector Surjit Singh No.160/FGS. Form No.29 was also prepared and handed over to Inspector Surjit Singh. No,160/FGS after seal of the Court bearing impression "MD" endorsed on it. 6.

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(a) Samples A and B drawn today in the Court bearing impression"MD" are ordered to be sent to Regional Director, Forensic Science Laboratory, Ludhiana for it's chemical examination.

(b) Samples A61 and B61 drawn today in the Court bearing impression "MD" are ordered to be deposited in Judicial Malkhana.

7. Remaining case property be destroyed as per rules formulated under Circular Order No.9 dated 31.05.2001 of ADGP, Crime Punjab and Strictly by the Drug Disposal Committee, and after taking photographs of the same. Copy of this order be given to the Investigating Officer.

8. Inventory is, accordingly, certified to be correct and is per se admissible in evidence under section 526A(4) of Narcotic Drugs and Psychotropic Substances Act, 1985. xxxx"

He thus submits that the case of the prosecution is bound to fall as tampering with the sample is evident from the record.

Faced with the situation State Counsel prays for time to file reply.

On his request, adjourned to 20.11.2023".

Custody certificate as well as short reply by way affidavit of Gurmeet Singh, PPS, Deputy Superintendent of Police (CAW) Khanna, additional charge Sub Div. Samrala, Police District Khanna, District Ludhiana, have been filed in Court today. The same are taken on record.

In sum and substance, the factual assertion being made by counsel for the petitioner has been admitted in the same. It has been further claimed that effort was made to check whether the sample was drawn in the Court and whether two strips were left in the bulk parcel but the same could not be verified for the fact that bulk parcel was destroyed on 12.10.2022 and counsel for the State on inquiry from the Court admits that so far as destroyed

contraband is concerned there is no record kept. Learned counsel for the petitioner relies upon order passed by Apex Court in the case of

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(")()() * Earlier to & ' also Apex Court has consistently held that the prolonged incarceration has to be considered dehors bar contained under Section 37 of the NDPS Act. The Supreme Court in order dated 22.08.2022 passed by the Supreme Court in +2!%&84!/! "22!8 7-8)9") titled as () ** *+ ,+

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2 The above6said 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 observed 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 conclusion of trial will take some time.

Supreme Court in order dated 07.02.2020 passed by the Hon'ble Supreme Court in *+

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4 2+5( 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: 6 "3 & !

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2 In order dated 05.08.2022 passed by the Supreme Court in *+

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#2 In order dated 01.08.2022 passed by the Supreme Court in Special Leave to Appeal (Crl.) No.5769/2022 titled as ( :

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2 Having heard rival contentions made by learned counsel for the parties, this Court is of the considered opinion that the petitioner has admittedly not a prior convict as yet.

Without further commenting upon the merits of the case, keeping in view that the petitioner is behind bar for more than one year, six months and nine days and has no criminal antecedents and taking note of the fact that out of 16 cited witnesses, only 3 have been examined till date, 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 :6 ()!

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13 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.

14 Ordered accordingly.

15 Needless to say that anything observed herein shall not be construed to be an opinion on the merits of the case."

The petitioner claims parity. Petitioner is behind bars for more than 01 year, 09 months and 04 days. The contention with respect to discrepancy in the sample received by FSL, Ludhiana and the order passed by Magistrate under Section 526A of the Act has been noticed in the bail plea of co6accused Rahul Sharma.

Keeping in view the parity and the incarceration already suffered by the petitioner, the present petition is allowed. Petitioner is ordered to be released on regular 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 :6 ()!

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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. 6.

Ordered accordingly.

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) ) Dinesh Whether speaking/reasoned :

Yes Whether Reportable :