Allowed

Gaurav @ Chanchal v. State of Haryana

Punjab & Haryana HC27 Aug 2024CRM-M/15258/2024

Case brief

AI extract

What is this about?

Petitioner sought regular bail under Section 439 Cr.P.C. in an NDPS commercial quantity case involving tramadol capsules, having undergone over one year's custody with only one of seventeen witnesses examined. Relying on Supreme Court precedents on prolonged incarceration overriding Section 37, bail was granted subject to conditions.

What did the court decide?

Regular bail granted subject to furnishing bail/surety bonds to the satisfaction of the Trial Court/Magistrate, with seven conditions including passport deposit and non-tampering.

Gaurav @ Chanchal Vs State of Haryana — Narcotics (NDPS) | Punjab & Haryana HC (2024)

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[214] IN THE HIGH COURT OF P UNJAB AND HARYANA AT CHANDIG A RH

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CRM-M- 1 5258-2024 Date of D ecision : 27.08.2024

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Gaurav @ Chanchal …Petitioner

versus

State of H aryana

….Respondent

Coram : HON’BLE MR. JUSTICE PANKAJ JAIN

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Present: Mr. Karan Singh, Advocate f or the petitioner. Mr. Apoorv Garg, Sr. DAG, H aryana.

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PANKAJ JAIN, J. (ORAL)

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[1] Prayer in this second petitio n filed under Section 439 Cr.P. C . is for gran t of regular bail to the petit i oner in case FIR No.191 d a ted 19.07.20 2 3 registered under Sections 21( C )/27-A/29 of the NDPS Act, 1 9 85 and Sect i on 201 of the IPC at Police S tation Sadhaura, District Yam u na Nagar, H a ryana, during the pendency of t h e trial.

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[2] As per the case of the prosecution, petitioner was apprehen d ed on 19.07 . 2023 along with narcotic sub s tance i.e. 528 capsules contai n ing Dicyclo m ine Hydrochloride & Tramado l Hydrochloride & Acetaminop h en weighing 295.02 grams, which is a co m mercial quantity, on the basi s of secret inf o rmation.

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[3] Custody certificate dated 2 5.08.2024 has been produce d in Court to d ay. The same is taken on reco r d. As per the same, petitioner has undergon e actual custody for more than 0 1 year 01 month and 05 days a nd RAJNEESH SHARMA 2024.08.28 06:18 I attest to the accuracy and has clean antecedents. integrity of this document

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CRM-M-15258-2024 -2-

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[4] Counsel for the petitioner s ubmits that despite the petiti o ner being in c ustody for more than 01 year a nd 01 month and 05 days, trial has not proce e ded. Challan was presented o n 10.01.2024. Charges were fra m ed on 16.03. 2 024 and since then only 01 ou t of 17 prosecution witnesses c o uld be exami n ed despite the fact that most of the witnesses are officials.

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[5] Learned State counsel is n ot in a position to dispute the aforesaid facts.

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[6] I have heard learned counse l for the parties and have caref u lly gone thro u gh the record of the case.

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[7] Learned counsel for the pet i tioner relies upon order passe d by the Apex Court in the case of Rabi Prakash Vs. The State of Odisha pa s sed in Special Leave to Appeal (Crl.) No(s). 4169 of 2023 decided on 13.07.20 2 3 wherein it has been held as u n der :-

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“4. As regard to the twin conditi o ns contained in Section 37 of the N D PS Act, learned counsel for the resp o ndent – State has been duly heard. Th us, the 1st condition stands compli e d with. So far as the 2nd condition re: formation of opinion as to wh e ther there are reasonable ground s to believe that the petitioner is not g uilty, the same may not be formed at this stage when he has already spe n t more than three and a half year s in custody. The prolonged incarcer a tion, generally militates against the m ost precious fundamental right g uaranteed under Article 21 of the Constitution and in such a situat i on, the conditional liberty must override the statutory embargo created u nder Section 37(1)(b)(ii) of the N D PS Act.”

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[8] Earlier to Rabi Prakash's case (supra) also Apex Court has

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consisten t ly held that the prolonged incar c eration has to be considered de

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RAJNEESH SHARMA 2024.08.28 06:18 I attest to the accuracy and integrity of this document

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CRM-M-15258-2024 -3-

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hors bar c ontained under Section 37 of t h e NDPS Act. The Supreme C o urt in order d ated 22.08.2022 passed by the S upreme Court in Special Leave to Appeal (Crl.) No.5530-2022 titled as "Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, had held as un d er:-

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" We are inclined to rel e ase the petitioner on bail only on the ground that he has spent about two years in custody and conclusio n of trial will take some time.

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Consequently, without ex p ressing any views on the merits o f the case and taking into consideratio n the custody period of the petitioner, this special leave petition is accept e d and the petitioner is ordered t o be released on bail subject to his fu r nishing the bail bonds to the satisfa c tion of the Special Judge/ concerned T rial Court.

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terms.

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The special leave petition is, accordingly, disposed of inthe a b ove Pending application(s), if a ny, shall also stand disposed of."

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[9] Supreme Court in order date d 07.02.2020 passed by the Hon'ble Supreme Court in Criminal Appeal No.245/2020 titled as "Chitta Biswas Alias Subhas Vs. The State of West Bengal" was pleased to g r ant concessi o n of bail to the petitioner (there i n) in a case where the custody w as of 1 year and 7 months approximately. T h e relevant portion of the said o r der dated 07. 0 2.2020 is as under: -

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" Leave granted.

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This appeal arises out of the final Order dated 30.7.2010 passed by the High Court of C a lcutta in CRM No.6787 of 2019.

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The instant matter aris e s out of application preferred by the appellant under Section 439 C r .P.C. seeking bail in connection w ith Criminal Case No.146 of 2018 registered with Taherpur Police Station for offence punishabl e under Section 21-C of the Narcotic Drugs and Psychotropic Subst a nces Act, 1985.

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RAJNEESH SHARMA 2024.08.28 06:18 I attest to the accuracy and integrity of this document

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CRM-M-15258-2024 -4-

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According to the prosec u tion, the appellant was found to be in possession of narcotic substan c e i.e. 46 bottles of phensydryl cough syrup containing codeine mixt u re above commercial quantity. The appellant was arres t ed on 21.07.2018 and continues t o be in custody. It appears that out of 10 witnesses cited to be exam i ned in support of the case of pro s ecution four witnesses have alr e ady been examined in the trial.

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Without expressing any opinion on the merits or demerit s of the rival submissions and cons i dering the facts and circumstance s on record, in our view, case for b ail is made out. We therefore, a l low this appeal and direct as under: (a) Subject to furnishing bail b ond in the sum of Rs.2 lakhs with two like sureties to the satisfactio n of the Judge, Special Court, N D PS Act, Nadia at Krishnagar, the a ppellant shall be released on bail. (b) The Special Court may im p ose such other conditions as it de e ms appropriate to ensure the pres e nce and participation of the appel l ant in the pending trial. With the af oresaid directions, the appeal st a nds allowed."

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[10] In order dated 05.08.2022 in Criminal Appeal No.1169 of 2022 titled as "Gopal Krishna Patra @ Gopalrusma Vs. Union of India," the

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Supreme Court was pleased to observe as under: -

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" Leave granted.

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This appeal challenges t h e judgment and order dated 25.01. 2 022 passed by the High Court Of Ma d hya Pradesh, Principal Seat at Jabal p ur, in MCRC No.117/2022. The ap p ellant is in custody since 18.06.202 0 in connection with crime registere d as N.C.B. Crime No.02/2020 in res p ect of offences punishable under Sec t ions 8, 20, 27-AA, 28 read with 29 o f the Narcotic Drugs and Psychotropic Substances Act, 1985. The application seeking r elief of bail having been rejected, the instant appeal has been filed. We have heard Mr. Ashok Kumar Panda, learned Senior Advoc a te

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RAJNEESH SHARMA 2024.08.28 06:18 I attest to the accuracy and integrity of this document

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CRM-M-15258-2024

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in support of the appeal and Mr. Sanjay Jain,learned Additional Soli c itor General for the respondent.

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Considering the facts an d circumstances on record and the le n gth of custody undergone by the ap p ellant, in our view the case for bail is made out.

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We therefore, direct that:

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(a) The appellant shall be produc e d before the Trial Court within five d ays from today.

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(b) The Trial Court shall relea s e the appellant on bail subject to s uch conditions as the Trial Court ma y deem appropriate to impose. (c) The appellant shall not in any manner misuse his liberty. (d) Any infraction shall entail in w ithdrawal of the benefit granted by this Order.

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The appeal is allowed in a f oresaid terms."

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[11] In order dated 01.08.2022 i n Special Leave to Appeal ( C rl.) No.5769/ 2 022 titled as "Nitish Adhikary @ Bapan Vs. The State of West Bengal" S upreme Court has observed as u nder: -

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"As per the office report d ated 29.07.2022, copy of the show c a use notice along with Special Leav e Petition was supplied to the Stan d ing Counsel for the State of West Be n gal and separate notice has been se r ved on the State also. However, no one has entered appearance on their behalf.

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The petitioner seeks enlar g ement on bail in F.I.R. No. 612 of 2 020 dated 17.10.2020 filed under S e ction 21(c) and 37 of the NDPS A ct, registered at Police Station Bong a on, West Bengal.

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During the course of t h e hearing, we are informed that the petitioner has undergone custody f or a period of 01 year and 07 mont h s as on 09.06.2022. The trial is at a p r eliminary stage, as only one witness has been examined. The petitioner do e s not have any criminal antecedents.

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RAJNEESH SHARMA 2024.08.28 06:18 I attest to the accuracy and integrity of this document

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CRM-M-15258-2024 -6-

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Taking into consideration the period of sentence undergone b y the petitioner and all the attending circumstances but without expressing any views in the merits of the cas e , we are inclined to grant bail to the petitioner. The petitioner is accor d ingly, directed to be released on bail subject to him furnishing bail bonds to the satisfaction of the Trial Cou r t. The Special Leave Petitio n is disposed of on the aforestated ter m s. Pending application(s), if any, sh a ll stand disposed of."

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[12] The petitioner is behind bar s since 21.07.2023. By now, o nly 01 witne s s, out of 17 cited witnesses, c ould be examined, that too, w h en almost al l the cited witnesses are official. [13] Keeping in view the custo d y of petitioner i.e. more than 01 year, 01 m onth in the present case and t h at the trial has proceeded at sn a il’s pace, the present petition deserves to be allowed . Petitioner is ordered t o be released o n regular bail, subject to his f urnishing bail/surety bonds to the satisfacti o n of the learned Trial Court/M a gistrate, concerned. However, the same sha l l be subject to the following co n ditions:-

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(i) The petitio n er shall not mis-use the lib e rty granted.

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(ii) The petiti o ner shall not tamper with a ny evidence oral o r documentary during the trial.

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(iii) The petitio n er shall not absent himself on a ny date before the t rial.

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(iv) The petiti o ner shall not commit any offe n ce while on bail.

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(v) The petitio n er shall deposit his passport, if a ny with the trial C o urt.

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RAJNEESH SHARMA 2024.08.28 06:18 I attest to the accuracy and integrity of this document

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CRM-M-15258-2024 -7-

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(vi) The petitio n er shall give his cellphone nu m ber to the police a u thorities and shall not change his cell-phone nu mb er without permission of the t rial Court.

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(vii) The petiti o ner shall not in any manner tr y to delay the trial.

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[14] In case of breach of any of the aforesaid conditions and t h ose which m a y be imposed by the Trial Cour t , the prosecution shall be at lib e rty to move c ancellation of bail of the petitio n er.

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[15] Ordered accordingly.

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(PANKAJ JAIN) JUDGE 27.08.20 2 4 ‘R. Sharma' Whether speaking/ reasoned : Yes/No Whether reportable : Yes/No

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RAJNEESH SHARMA 2024.08.28 06:18 I attest to the accuracy and integrity of this document

Gaurav @ Chanchal v. State of Haryana

Case brief

What is this about?

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Gaurav @ Chanchal v. State of Haryana

Case brief

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