Shiv Kumar @ Babbi v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH CRM-M-8863-2023 (O&M) Date of decision: 28.07.2023 Shiv Kumar @ Babbi ..Petitioner

Versus

State of Punjab ..Respondent CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY

Present:

Mr. SPS Khaira, Advocate for the petitioner.

Mr. Manipal Singh Atwal, DAG, Punjab.

*** AMAN CHAUDHARY, J.

1.

Prayer in the present petition filed under Section 439 Cr.P.C. is for grant of regular bail to the petitioner in FIR No.89 dated 13.09.2021, registered under Sections 20, 25, 27 and 29 of NDPS Act, at Police Station Govt. Railway Police Ludhiana, District Ludhiana.

2.

Learned counsel contends that the petitioner is in custody for 1 year and more than 10 months. The sampling procedure in the present case was not correct, as only 50 gm out of total quantity of contraband, which was in the form of small pieces weighing 4 kgs, was sent to the FSL. Co-accused has been granted regular bail vide order dated 08.02.2023, Annexure P8, after a custody of 1 year and 5 months. Charges stand framed on 16.04.2022 but out of 10 prosecution witnesses, only 2 have been examined. The petitioner is involved in another case under the NDPS, wherein he is on bail. In this regard, reliance is placed on the judgment of Hon'ble The Supreme Court in Maulana Mohd. Amir Rashadi vs. State of U.P. and others, 2012(2) SCC 382.

3.

The custody certificate dated 27.07.2023, filed by learned State counsel is taken on record. As per the same, the petitioner is behind bars for 1 year, 10 months and 16 days.

4.

Learned State counsel opposes the bail on the ground that the petitioner was apprehended at the spot and commercial quantity of contraband was recovered from him. He is however unable to controvert the submissions made regarding the stage of the case, petitioner being on bail in other case and coaccused having been granted bail. 5.

Heard.

6.

Hon'ble The Supreme Court in the case of Maulana Mohd. Amir Rashadi (Supra) had held that, "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." 7.

Hon'ble The Supreme Court in the case of Dheeraj Kumar Shukla vs. The State of Uttar Pradesh, SLP (Criminal) No.6690/2022 decided on 25.01.2023 observed that in case of long custody period, involving quantity recovered to be of commercial nature, where the trial is yet to commence, though charges had been framed, the condition of Section 37 of NDPS Act can be dispensed with. Similarly, in the case of Shariful Islam @ Sarif vs. The State of West Bengal SLP (Crl.) No.4173/2022, decided on 04.08.2022, Hon'ble The Supreme Court granted bail to the petitioner in a case of recovery of commercial quantity of contraband, considering incarceration for over 1 year and 6 months and there being no likelihood of completion of trial in the near future. In the case of

Bhupender Singh vs. Narcotic Control Bureau (2022) 2 RCR (Crl.) 706, the Division Bench of this Court observed with regard to achieving balance between right to speedy trial guaranteed under Article 21 of the Constitution of India and rigors of Section 37 of NDPS Act. In the case of Munasi Masih vs. State of Punjab, CRM-M-31504-2022, decided on 06.02.2023, this Court granted bail to a first offender from whom commercial quantity of contraband had been recovered and only 2 out of 13 PWs have been examined, by observing that in view of delayed trial, the rigors of Section 37 of NDPS Act can be diluted to an extent and the petitioner can be granted bail, keeping in mind the right to a speedy trial as envisaged Article 21 of the Constitution of India. 8.

Considering the facts and circumstances of the case, in particular that the petitioner is in custody for the last 1 year, 10 months and 16 days; is on bail in the other case registered against him; co-accused having been enlarged on bail; though charges were framed on 16.04.2022 but only 2 out of 10 witnesses have yet been examined; the trial is likely to take a considerable time, thus further incarceration of the petitioner would be violative of his right enshrined under Article 21 of the Constitution of India and the rigors of Section 37 of NDPS Act can be diluted bearing in mind the righty to a speedy trial, thus, the present petition for grant of regular bail deserves to be allowed. 9.

As a result, the present petition is allowed. The petitioner is ordered to be released on regular bail, subject to his furnishing bail/surety bonds to the satisfaction of trial Court/Duty Magistrate concerned and subject to his not being required in any other case. The petitioner shall abide by the following conditions:- (i) The petitioner will not tamper with the evidence during the trial.

(ii) The petitioner will not pressurize/ intimidate the prosecution witnesses.

(iii) The petitioner will appear before the trial Court on each and every date fixed, unless is exempted by a specific order of Court.

(iv) The petitioner shall not commit an offence similar to the offence of which, he is an accused, or for commission of which he is suspected of.

(v) The petitioner shall not directly or indirectly coerce, induce, threaten or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer or tamper with the evidence in any manner.

(vi) The petitioner shall not in any manner misuse his liberty. (vii) The petitioner shall furnish his address and mobile number to the Trial Court forthwith and shall not change the same till the conclusion of the trial and in case for any reason, the petitioner seeks to change any of the aforesaid, the same shall be done only with prior intimation to the learned Trial Court, stating the reason for the same.

(viii) The petitioner shall not leave the country without prior permission of the trial Court.

(ix) The trial Court/Duty Magistrate may impose any other condition, as deemed appropriate while releasing the petitioner.

10.

It is made abundantly clear that in case there is any breach of the aforesaid conditions, the State shall be at liberty to seek cancellation of bail as granted to the petitioner by this order.

11.

In view of the above, it is clarified that the observations made herein are limited for the purpose of present proceedings and would not be construed as an opinion on the merits of the case and the trial would proceed independently of the aforesaid observations.

( AMAN CHAUDHARY ) 28.07.2023 JUDGE ashok Whether speaking/reasoned : Yes/No Whether reportable :

Yes/No