High Court of Punjab and HaryanaCRM-M/12819/2022allowed

Sunil Kumar @ Dimpa @ Dimple Masih v. State Of Punjab

2023-08-07Mr. Justice Aman Chaudhary5 pages

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IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH CRM-M-12819-2022 (O&M) Date of decision: 07.08.2023 Sunil Kumar @ Dimpa @ Dimple Masih ....Petitioner

Versus

State of Punjab

...Respondent

CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY ***** Present :

Mr. Ankur Jain, Advocate for the petitioner Mr. H.S. Sullar, Sr. DAG Punjab ***** AMAN CHAUDHARY. J.

Prayer in the present petition filed under Section 439 Cr.P.C. for the grant of regular bail to the petitioner in case FIR No.76 dated 23.07.2021, registered under Section 21 of NDPS Act (Section 29 of NDPS Act added later on), at Police Station Chohla Sahib, District Tarn Taran. 2.

Learned counsel contends that the petitioner is in custody for 2 years. The alleged recovery effected from him is marginally above the non-commercial quantity, it being 260 grams of Heroin. The mandatory provisions of Section 50 NDPS Act were not complied with while effecting recovery. Challan has been presented. Charges have not been framed. In all there are 13 prosecution witnesses. Though, the petitioner is involved in two more cases under the NDPS Act, however, non-commercial quantity of contraband have been recovered in those cases, 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.

The custody certificate dated 06.08.2023 has been filed by learned State counsel, as per which, the petitioner is behind bars for 2 years and 11 days. 4.

Learned State counsel opposes the bail on the ground that the petitioner was apprehended at the spot and the commercial quantity of contraband has been recovered from him. He is however unable to controvert the submissions with regard to stage of the case and petitioner is on bail in other cases registered against him.

Heard.

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.

The Coordinate Bench of this Court in Gurpreet Singh vs. State of Punjab in CRM-M-45214-2021 decided on 23.03.2022, where 255 grams of heroin was recovered, custody was a little over 1 year and there being no criminal antecedents, the petitioner was granted the concession of bail on the aforesaid grounds. In Balwinder Singh vs. State of Punjab in CRM-M-37684-2021 decided on 14.02.2022, the bail was granted to the petitioner while relying on Jagjit Singh @ Jagga Gill vs. State of Punjab 2020(2) RCR (Cr.) 612, the alleged recovery effected being 258/260 grams of heroin, the custody was of 1 year and 16 days and while holding that the bar under Section 37 NDPS Act in the

- - case of commercial quantity cannot be termed to be absolute in nature and the departure can be made if the alleged recovery is marginally higher than the commercial quantity.

Hon'ble The Supreme Court of India 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 a 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 of India 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. This Court in the case of Balraj Singh vs. State of Punjab CRM-M-57386-2022, decided on 14.12.2022 has followed the dictum laid down by Hon'ble The Supreme Court of India and granted bail to the petitioner therein after he had undergone total custody of 1 year and 6 months. In the case of Munasi Masih vs. State of Punjab, CRM-M-31504-2022, decided on 06.02.

- - 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 under Article 21 of the Constitution of India. 9.

Considering the facts and circumstances of the case, in particular that the petitioner is in custody for the last 2 years and 11 days; on bail in other cases; alleged recovery is marginally above the non-commercial quantity; though the challan stands presented, however, charges are yet to be framed; in all there are 13 prosecution witnesses, 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. 10.

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.

11.

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.

12.

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) JUDGE August 07, 2023 M.Kamra Whether speaking/reasoned :

Yes / No Whether reportable :

Yes / No