Allowed

Harjinder Singh Alias Hathodi v. State of Punjab

Punjab & Haryana HC1 Oct 2024CRM-M/2322/2024

Case brief

AI extract

What is this about?

Regular bail sought in a heroin smuggling case under the NDPS and Arms Acts after over two years' custody, completed investigation, and slow trial progress with only four of fifteen witnesses examined. Relying on Supreme Court precedent that prolonged incarceration overrides the Section 37 embargo, the Court allowed bail subject to conditions including no evidence tampering, passport deposit, and

What the court decided

AI extract

Harjinder Singh Alias Hathodi Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2024)

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CRM-M-2322-2024

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221 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-2322-2024 Date of decision : 01.10.2024

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HARJINDER SINGH ALIAS HATHODI ....Petitioner

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Versus

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STATE OF PUNJAB ...Respondent

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CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN

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Present : Mr. Harpal Singh Sidhu, Advocate for the petitioner.

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Mr. Soloman Partap Singh, AAG, Punjab.

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PANKAJ JAIN, J. (ORAL)

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This petition has been filed under Section 439 Cr.P.C. for grant of regular bail in case F.I.R. No.106 dated 24.09.2022 registered under Sections 21 and 29 of NDPS Act, 1985 and Sections 25(6) and 25(7)(i) of Arms Act, 1959 at Police Station Bhikhiwind, District Tarn Taran.

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At the outset, counsel for the petitioner prays that the present petition be treated to be the one under Section 483 of the BNSS 2023.

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The prayer is allowed.

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As per the case of prosecution, the petitioner was apprehended on the basis of a secret information that he is indulging in smuggling of heroin. During investigation, the petitioner suffered a disclosure that he along with co-accused used to smuggle heroin and ammunition from

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Deepak Kumar 2024.10.01 17:49 I attest to the accuracy and integrity of this document

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CRM-M-2322-2024

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Pakistan with the help of drone. On his further disclosure 273 grams of heroin was recovered from his house.

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Counsel for the petitioner submits that the petitioner by now has undergone actual custody of more than 2 years. Investigation stands concluded and challan stands presented. Out of 15 cited witnesses, only 4 could be examined till date. He thus submits that custody of the petitioner should not be allowed to be prolonged as a punitive measure.

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Learned counsel for the petitioner relies upon order passed by Apex Court in the case of Rabi Prakash Vs. The State of Odisha passed in Special Leave to Appeal (Crl.) No(s). 4169 of 2023 decided on 13.07.2023 wherein it has been held as under:

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“4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. 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 Act.”

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Earlier to Rabi Prakash's case ( supra) also Apex Court has consistently held that the prolonged incarceration has to be considered

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Deepak Kumar 2024.10.01 17:49 I attest to the accuracy and integrity of this document

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dehors bar contained under Section 37 of the NDPS Act. The Supreme Court in Special Leave to Appeal (Crl.) No.5530-2022 dated 22.08.2022 titled as "Mohammad Salman Hanif Shaikh vs. The State of Gujarat” , held as under:-

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

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Consequently, without expressing any views on the merits of the case and taking into consideration the custody period of the petitioner, this special leave petition is accepted and the petitioner is ordered to be released on bail subject to his furnishing the bail bonds to the satisfaction of the Special Judge/ concerned Trial Court.

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The special leave petition is, accordingly, disposed of in the above terms.

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Pending application(s), if any, shall also stand disposed of."

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The above-said 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.

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The Hon'ble Supreme Court in Criminal Appeal No.245/2020 dated 07.02.2020 titled as "Chitta Biswas Alias Subhas Vs. The State of

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Deepak Kumar 2024.10.01 17:49 I attest to the accuracy and integrity of this document

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West Bengal" 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

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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 Calcutta in CRM No.6787 of 2019.

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The instant matter arises out of application preferred by the appellant under Section 439 Cr.P.C. seeking bail in connection with Criminal Case No.146 of 2018 registered with Taherpur Police Station for offence punishable under Section 21C of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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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.

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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.

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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. We therefore, allow this appeal and direct as under:

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(a) Subject to furnishing bail bond in the sum of Rs.2 lakhs with two like sureties to the satisfaction of the Judge, Special Court, NDPS Act, Nadia at Krishnagar, the appellant shall be released on bail.

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(b) The Special Court may impose such other conditions as it deems appropriate to ensure the presence and participation of the appellant in the pending trial. With the aforesaid directions, the appeal stands allowed."

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Deepak Kumar 2024.10.01 17:49 I attest to the accuracy and integrity of this document

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The Supreme Court in Criminal Appeal No.1169 of 2022 dated 05.08.2022 titled as "Gopal Krishna Patra @ Gopalrusma Vs. Union of India," observed as under: -

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"Leave granted.

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This appeal challenges the judgment and order dated 25.01.2022 passed by the High Court Of Madhya Pradesh, Principal Seat at Jabalpur, in MCRC No.117/2022. The appellant is in custody since 18.06.2020 in connection with crime registered as N.C.B. Crime No.02/2020 in respect of offences punishable under Sections 8, 20, 27-AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

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The application seeking relief of bail having been rejected, the instant appeal has been filed.

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We have heard Mr. Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr. Sanjay Jain,learned Additional Solicitor General for the respondent.

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Considering the facts and circumstances on record and the length of custody undergone by the appellant, 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 produced before the Trial Court within five days from today.

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(b) The Trial Court shall release the appellant on bail subject to such conditions as the Trial Court may deem appropriate to impose.

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(d) Any infraction shall entail in withdrawal of the benefit granted by this Order.

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The appeal is allowed in aforesaid terms."

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Deepak Kumar 2024.10.01 17:49 I attest to the accuracy and integrity of this document

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The Supreme Court in Special Leave to Appeal (Crl.) No.5769/2022 dated 01.08.2022 titled as "Nitish Adhikary @ Bapan Vs. The State of West Bengal" observed as under: -

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"As per the office report dated 29.07.2022, copy of the show cause notice along with Special Leave Petition was supplied to the Standing Counsel for the State of West Bengal and separate notice has been served on the State also. However, no one has entered appearance on their behalf.

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The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS Act, registered at Police Station Bongaon, West Bengal.

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During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

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Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.

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The petitioner is accordingly, directed to be released on bail subject to him furnishing bail bonds to the satisfaction of the Trial Court.

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The Special Leave Petition is disposed of on the aforestated terms.

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Pending application(s), if any, shall stand disposed of."

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Learned State counsel is not in a position to dispute the aforementioned factual assertions based on record.

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I have heard learned counsel for the parties and have gone through the records of the case.

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Deepak Kumar 2024.10.01 17:49 I attest to the accuracy and integrity of this document

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Without commenting on the merits of the case, keeping in view the incarceration already suffered by the petitioner and the fact that the investigation already stands concluded and Challan stands presented, the present petition is allowed. The petitioner is ordered to be released on bail on his furnishing bail bonds/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.

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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:

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(i) The petitioner shall not mis-use the liberty granted. (ii) The petitioner shall not tamper with any evidence oral or documentary during the trial.

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(iii) The petitioner shall not absent himself on any date before the trial.

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(iv) The petitioner shall not commit any offence while on bail. (v) The petitioner shall deposit his passport, if any with the trial Court.

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(vi) The petitioner shall give his cellphone number to the police authorities and shall not change his cell-phone number without permission of the trial Court.

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(vii) The petitioner shall not in any manner try to delay the trial.

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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.

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