Allowed

Gobind Singh v. State of Punjab

Punjab & Haryana HC17 Sept 2024CRM-M/25559/2024

Case brief

AI extract

What is this about?

Regular bail sought by a person accused under Sections 22 and 29 of the NDPS Act after seizure of 60 bottles of codeine phosphate cough syrup. Considering custody of nearly three years, reliance on Supreme Court bail orders in similar codeine-syrup cases, and without commenting on merits, the High Court allowed bail with conditions including surrender of firearms.

What did the court decide?

Petitioner to be released on regular bail in FIR No.19 dated 18.01.2021, PS Dirba, subject to furnishing bonds, appearing on all dates, not tampering with evidence, and surrendering all weapons/firear

Gobind Singh Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2024)

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CRM-M-25559-2024

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-25559-2024 Reserved on: 04.09.2024 Pronounced on: 17.09.2024

Gobind Singh

...Pe��oner

Versus

State of Punjab …Respondent

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CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Mr. Mikhail Kad, Advocate, for the pe��oner.

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Mr. Sukhdev Singh, AAG, Punjab.

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ANOOP CHITKARA, J.

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FIR No.	Dated	Police Sta0on	Sec0ons
19	18.01.2021	Dirba,Dis*. Sangrur	22/29 of NDPS Act

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The pe��oner incarcerated in the FIR cap�oned above had come up before this Court under Sec�on 439 CrPC read with Sec�on 482 CrPC, seeking regular bail.

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As per paragraph 18 of the bail applica�on and the reply/custody cer�ficate, the

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accused has the following criminal antecedents:

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Sr. No.	FIR No.	Dated	Offenses	Police Sta0on
1.	226	17.12.201	22 of NDPS Act	City Dhuri, Dis*. Sangrur
		8

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The facts and allega�ons are taken from status report dated 18.07.2024 filed by the State. On 18^th January 2021, based on prior informa�on, the Police seized 60 bo*les of cough syrup containing codeine phosphate, etc., from the pe��oner’s possession.

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�� The Inves�gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

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The pe��oner's counsel submits that vide order dated 28.08.2023 passed by this Court in CRM-M-40642-2023, the pe��oner was granted interim bail on medical grounds as he was suffering from brain tumour and during the period of interim bail, he never misused the concession of interim bail.

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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The pe��oner's counsel prays for bail by imposing any stringent condi�ons and contends that further pre-trial incarcera�on would cause an irreversible injus�ce to the pe��oner and their family.

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The State’s counsel opposes bail and refers to the status report. It would be appropriate to refer to para 7-A and 7-B of the status report, which reads as follows:

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“7.A) Role of pe��oner Gobind Singh

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The present FIR was registered against Gobind Singh (present pe��oner), Pardeep @ Sonu, Rajvir and Kamaljeet Singh @ Kamal on the basis of secret informa�on received by ASI Mahipal Singh. Further inves�ga�on was carried out by SI Satgur Singh. Pursuant to the secret informa�on Gobind Singh and Kamaljeet Singh @ Kamal were apprehended along with car bearing RC No.PB 31L 8087 make swi3 and 30 intoxicant vials of 100 ml each labeled as Chlorpheniramine Maleate & Codeine Phosphate Syrup WINCIREX were recovered from their possession. Pardeep @ Sonu and Rajvir were apprehended along with car bearing RC No.HR 66A 9372 make Indigo and 30 intoxicant vials of 100 ml each labeled as Chlorpheniramine Maleate & Codeine Phosphate Syrup Wincirex were recovered from their possession. In this case total 60 intoxicant vials were recovered, out of which 30 intoxicant vials were recovered from the possession of present pe��oner and his co-accused Kamaljeet Singh @ Kamal. So, a specific role is found to be a?ributed to the pe��oner in the commission of present offence.

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B) The Evidence against the pe��oner.

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In this case total 60 intoxicant vials were recovered, out of which 30 intoxicant vials were recovered from the possession of present pe��oner and his co-accused Kamaljeet Singh @ Kamal.”

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The quan�ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe��oner must sa�sfy the twin condi�ons put in place by the Legislature under Sec�on 37 of the NDPS Act.

¶31

In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal, Criminal Appeal No.1202/2024, the Hon’ble Supreme Court held as under:-

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“Heard learned counsel for the appellant in support of the pe��on and learned counsel for the State and perused

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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the material on record. The appellant is in custody for approximately 1 year 4 months.

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During the course of submission it was pointed out by the learned counsel for the appellant that in another case the appellant has been granted bail and therefore, similar relief may be granted by this Court in this case.

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The said submission is in response to the submission made by the learned counsel for the respondent-State that this is not the only case in which the appellant has been apprehended. She further submi*ed that a huge quan�ty of codeine cough syrup was recovered from the premises (Godown) which has been tenanted by the appellant herein. Considering the facts on record, in our view, the case for bail is made out.”

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In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal, MANU/SCOR/00327/2024, Hon’ble Supreme Court held as under:-

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[2]. The allega�ons are that the pe��oner along with other accused persons were found in possession of two plas�c bags a cough containing a total of 10,000 ml. Of codeine phosphate narco�c substance. It further syrup, which is no�fied as a narco�c substance. It further appears from the contents of the FIR that the pe��oner, who was found in conscious possession of two white plas�c containers both of which contained 5,000 ml. each of the said liquid. He was apprehended at the spot and is in custody since then.

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[3]. The respondent State of West Bengal has filed its counter affidavit, in which it is candidly acknowledged that though the inves�ga�on is complete and the chargesheet has been filed, however, the charges are yet to be framed. The prosecu�on proposes to examine 10 witnesses. The conclusion of trial will, thus, take considerable �me. The pe��oner is in custody for the last more than one and a half years.. He does not have any criminal antecedents.

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[4]. According to learned counsel appearing on behalf of respondent State, the narco�c substance allegedly recovered from the pe��oner's possession is of commercial quan�ty' and, as such, the rigors of Sec�on 37 of the NDPS Act are a*racted. We have considered the submission.

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[5]. Taking into considera�on the period already undergone by the pe��oner in custody; the fact that he does not have any criminal antecedents and also keeping in view that the prolonged incarcera�on will not serve the cause of substan�al jus�ce, however, without expressing any views on the merits of the case, we are inclined to release the pe��oner on bail at this state. The pe��oner is, accordingly, directed to be released on bail subject to the following direc�ons:

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(i) The pe��oner shall furnish bail bonds to the sa�sfac�on of the Trial Court.

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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(ii) The pe��oner shall appear before the Trial Court regularly on each and every date of hearing.

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(iii) In case the pe��oner is found involved in any other case under the NDPS Act, in that event, the bail granted to him shall stand cancelled automa�cally and he shall be liable to surrender immediately.

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The accordingly. Special Leave Pe��on stands disposed of accordingly.”

¶51

In SK. Nasiruddin @ Nasirddin SK. Vs State of West Bengal, Criminal Appeal No.1415 of 2024, the Hon’ble Supreme Court held as under:-

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[5]. We note the submission of the learned counsel for the appellant that the appellant was arrested on 12.04.2022 and since then he has been in custody as an under trial prisoner. Even though charges have been framed, trial is yet to begin but there is no likelihood of the trial being taken up and completed within a short period of �me. It is also submi*ed that the appellant does not have any criminal antecedents. It is also brought to our no�ce that the High Court while rejec�ng the regular bail applica�on had erroneously recorded that 50 ltrs. of codeine phosphate was recovered from the appellant. This is perhaps a mistake as recovery of only 5 ltrs of codeine phosphate which was men�oned in the FIR.”

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In Debrata Mondal vs State of West Bengal, Special Leave to Appeal (Crl.)

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No.14970/2023, Hon’ble Supreme Court held as under:-

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[3]. Going by the allega�ons, 290 bo*les of phensedyl syrup was recovered from the possession of the pe��oner and the co-accused. The fact is that the co-accused was enlarged on bail by the High Court. The pe��oner is in custody since 10.01.2022. Taking into account the aforesaid aspects, we are of the considered view that the pe��oner can be enlarged on bail, subject to the terms and condi�ons to be imposed by the Trial Court. Ordered accordingly. In that regard, the pe��oner shall be produced before the Trial Court, forthwith.”

¶56

In Santarul Islam @ Santa vs The State of West Bengal, Special Leave to Appeal (crl.) No.13169/2023, Hon’ble Supreme Court held as under:-

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[3]. Considering the above and looking at the nature of the contraband (100 bo*les of Phensedyl cough syrup) which recovered from the accused in FIR No.18/2022. appropriate to grant bail to the pe��oner. deem it Accordingly the pe��oner (Santarul Islam Santa) be released on bail in connec�on with the case arising out of Jalangi P.S. Case No.18/2022. Appropriate bail condi�ons be imposed by the learned Trial Court.”

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In Narjul Islam @ Najbul Hoque vs The State of West Bengal, Special Leave to Appeal (crl.) No.14172/2023, a Division Bench of Hon’ble Supreme Court held as under:-

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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“The counsel for the pe��oner would submit that the pe��oner was arrested on 19.11.2022 in connec�on with the case arising out of FIR No.477/2022 and the High Court rejected bail for the pe��oner under the impugned order on 06.07.2023. It is also pointed out that the 100 bo*les of Phensedyt Syrup containing codiene phosphate were seized in the case. Mr. Gupta would then advert to various bail orders passed by this Court in cases with similar kind of contraband.

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Admi*edly, charges are yet to be framed and the trial is unlikely to conclude in near future. The State counsel by way of explana�on submits that charges in this case could not be framed as one of the accused is absconding.

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Having regard to the circumstances here and the remote possibility of the trial to conclude in near future and the incarcera�on of the pe��oner for over a year in connec�on with the contraband in ques�on, we deem it appropriate to grant bail to the pe��oner.

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Accordingly, the pe��oner (Najrul Islam Najbul Hoque) be released on bail. Appropriate terms and condi�ons for bail is to be imposed by the learned Trial Court.”

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In Ismaul Sk v. State of West Bengal, MANU/SCOR/00506/2024, Hon’ble Supreme Court holds,

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The appellant has undergone incarcera�on for a period of 1 year and 10 months. The allega�on is that 50 bo*les containing Phensedyl cough syrup were recovered from the appellant. Another issue is of viola�on of Sec�on 52A of the Narco�c Drugs and Psychotropic Substances Act, 1985.

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Considering the facts of the case and par�cularly in view of the fact that the trial has hardly made any progress in the sense that only one prosecu�on witness has been partly examined, the appellant deserves to be enlarged on bail.

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Criminal Appeal @ SLP(Criminal)No.14827/2023 Page 1 of 4 For that purpose, the appellant shall be produced before the Trial Court within a period of one week from today. The Trial Court shall enlarge the appellant on bail on appropriate terms and condi�ons, including the condi�on of regularly a*ending the Trial Court and coopera�ng with the Trial Court for early disposal of the case. The appeal is accordingly allowed.

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In Indrajit Mondal @ Piglu v. The State Of West Bengal, SLP (Crl.) No(s). 8512-

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2023, decided on 25-01-2024, Hon’ble Supreme Court holds,

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[1]. The pe��oner is in custody since 17 August 2021.

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[2]. FIR No 355 of 2021 was registered at PS Murshidabad for offences punishable

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under Sec�ons 21(c) and 29 of the Narco�c Durgs and Psychotropic Substances Act 1985. The allega�on is that the pe��oner was found to be in possession of ten litres of codeine phosphate.

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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[3]. We have heard Mr Praveen Swarup, counsel appearing on behalf of the pe��oner, and Mr Shreyas Awasthi, counsel appearing on behalf of the State of West Bengal.

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[4]. Counsel appearing on behalf of the State of West Bengal states that the charges have been framed on 4 January 2024 and the prosecu�on proposes to examine seventeen witnesses.

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[5]. The pe��oner is in custody for over two years and five months. There is no prospect of the trial concluding on an early date. Hence, we are of the view that it would be appropriate and proper to release the pe��oner on bail subject to such terms and condi�ons as may be imposed by the Special Court under NDPS Act-cum-ADJ, Second Court Berhampore, Murshidabad in connec�on with NDPS Case No 166 of 2021. Ordered accordingly.

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Saiful Islam v. The State of West Bengal, MANU/SCOR/60244/2024, Hon’ble Supreme Court holds,

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[3]. The counsel would point out that the pe��oner is in custody for over two years since he was arrested on 08.01.2022. It is then submied SLP (CRIMINAL) Diary No(s).39202/2023 that the contraband in ques�on is 112 boles of Phensedyl Syrup containing codeine phosphate.

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[4]. Since bail in similar circumstances was allowed by this Court, following the orders enclosed to the pe��oner, we deem it appropriate to grant bail to the pe��oner. Accordingly the pe��oner (Saiful Islam) be released on bail in connec�on with the case arising out of FIR No.16/2022. Appropriate bail condi�on be imposed by the learned Trial Court.

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In Shince Babu v. The State of Kerala, MANU/SCOR/27340/2024, Hon’ble Supreme Court holds,

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[2]. The prosecu�on case is that Accused No.1 (Liju) was found travelling in a private bus from Cherthala to Arooku*y and contraband MDMA, weighing 138.750 gms, was recovered from his conscious possession. The said contraband was procured by Accused No.1 with the help of Accused No.2 from Bangalore. The pe��oner is nominated as Accused No.4 in the crime. He was arrested on 11.04.2022. The pe��oner was granted bail by the Trial Court on 20.09.2022 but on a pe��on filed by the State of Kerala, challenging the bail order, the High Court cancelled the pe��oner's bail on 13.06.2023. However, liberty was granted to the pe��oner to apply afresh before the Sessions Court. The pe��oner again applied for bail but his prayer was declined by the Trial Court on 07.07.2023. The pe��oner approached the High Court but his first bail applica�on was dismissed on 14.08.2023. His second bail applica�on was turned down by the High Court on 09.10.2023. Meanwhile, Accused No.2 was granted bail by the High Court on 11.10.2023. Seeking parity with the co-accused, the pe��oner moved third bail applica�on, which has been rejected by the High Court vide the impugned order dated 09.11.2023.

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[3]. We have heard learned counsel for the par�es and carefully perused the material placed on record.

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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[4]. It may be seen from para 6 of the impugned order that the High Court, while declining bail to the pe��oner, was largely influenced by the fact that a huge quan�ty of contraband, which falls in the category of 'commercial', was recovered and as such, the rigors of Sec�on 37 of the NDPS Act are a*racted. On a specific query, it is not disputed by learned State counsel that no contraband was recovered from the conscious possession of the pe��oner. In such circumstances, it is difficult for us to apply the twin test of Sec�on 37 of the NDPS Act while considering the pe��oner's prayer for bail.

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[5]. Be that as it may, the pe��oner is in custody since 11.04.2022 except for the period from 20.09.2022 to 27.06.2023 when he remained on bail pursuant to the order passed by the Trial Court/Sessions Court.

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[6]. It seems that the inves�ga�on is complete and the conclusion of trial will take some reasonable �me. The pe��oner's coaccused are already on regular bail/default bail. As per the record, there are no criminal antecedents of the pe��oner.

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[7]. Taking into considera�on all the a*ending circumstances but without expressing any views on the merits of the case, we are inclined to grant bail to the pe��oner.

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[8]. The pe��oner is, accordingly, directed to be enlarged on bail subject to his furnishing bail bonds to the sa�sfac�on of the Trial Court.

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[9]. The pe��oner shall remain present before the Trial Court on each and every date of hearing, failing which it shall be taken as a misuse of concession of bail granted to him today by this Court.

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In Sk. Nasiruddin v. State of West Bengal, MANU/SCOR/34261/2024, Hon’ble

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Supreme Court holds,

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[4]. The appellant is charged for the offence(s) punishable under Sec�on 21(C)/29 of theNDPS Act, 1985 and seeks his enlargement on regular bail in a Case arising out of FIRNo. 219 of 2022 dated 12.04.2022, registered at P.S. Raghunathganj, Jangipur PoliceDistrict, Murshidabad, West Bengal.

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[5]. We note the submission of the learned counsel for the appellant that the appellant was arrested on 12.04.2022 and since then he has been in custody as an under trial prisoner. Even though charges have been framed, trial is yet to begin but there is no likelihood of the trial being taken up and completed within a short period of �me. It is also submi*ed that the appellant does not have any criminal antecedents. It is also brought to our no�ce that the High Court while rejec�ng the regular bail applica�on had erroneously recorded that 50 ltrs. Of codeine phosphate was recovered from the appellant. This is perhaps a mistake as recovery of only 5 ltrs of codeine phosphate which was men�oned in the FIR.

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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[6]. Keeping in view all the a*ending circumstances but without expressing any views onthe merits of the case, we are inclined to grant bail.

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In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal, Criminal Appeal No.1202/2024, the Hon’ble Supreme Court held as under:-

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“Heard learned counsel for the appellant in support of the pe��on and learned counsel for the State and perused the material on record. The appellant is in custody for approximately 1 year 4 months.

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In Subhashri Das @Rana @ Subhoshree vs The State of West Bengal, Special Leave to Appeal (Crl.) No.15284/2023, a Division Bench of Hon’ble Supreme Court held as under:-

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“The accusa�on is that the pe��oner was found in possession of 60 boles of Phensedyl Syrup (100 ml in each bole). The charge sheet was filed on 31.8.2022. The pe��oner has been in custody since 12.3.2022. The applica�on for bail filed by the pe��oner was rejected by the High Court and hence this special leave pe��on.

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Heard learned counsel for the pe��oner and also counsel for the Respondent-State. Taking note of the nature of the accusa�on and the fact that the pe��oner is in custody since 12.3.2022, we are of the considered view that the pe��oner can be ordered to released on bail subject to the terms and condi�ons to be imposed by the Trial Court. Ordered accordingly. The pe��oner shall be produced before the Trial Court forthwith for compliance with the order.”

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In Mithun Sk. & Anr. Vs The State of West Bengal, Criminal Appeal No.1200/2024, the Hon’ble Supreme Court held as under:-

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“The appellants have been booked for the crime registered pursuant to FIR No.158 of 2022 dated 26.07.2022 lodged with Police Sta�on Sagarpara, District Murshidabad, under Sec�on 21(C)/29 of the NDPS Act, 1985. The High Court noted that the narco�c substance i.e. 388 bo*les of phensedyl syrup containing codeine phosphate which is above commercial quan�ty was recovered from the appellants and in view of the statutory restric�ons under Sec�on 37 of the NDPS Act, the applica�on seeking bail was rejected.

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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Heard learned counsel for the par�es.

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We have perused the counter affidavit filed by the respondent-State.

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It is submi*ed by the learned counsel for the appellant(s) that the appellants were not in conscious possession of the offending material and that the prosecu�on has not complied with the requirements of Sec�on 52-A of the Act, 1985. Further, the appellants are in jail since 26 July 2022. Therefore, the appellants may be granted bail during the pendency of the trial.

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However, learned counsel for the respondent submi*ed that the recovery has been made from the appellants herein.

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Considering the above facts on record, in our view, the case for bail is made out.”

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In Indadul Shah vs The State of West Bengal, Special Leave to Appeal (Crl.)

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No.12670/2023, a Division Bench of Hon’ble Supreme Court held as under:-

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“The pe��oner was arrested on 27.10.2022 in furtherance of an FIR dated 27.10.2022 for offences punishable under Sec�on 21(c)/29 of the Narco�c Drugs and Psychotropic Substances Act, 1985. He was found in possession of 70 bo*les of 100 ml. Phensedyl.

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We no�ce from the record that charge-sheet has already been Filed on 20.04.2023. There is no likelihood of the trial being taken up and completed within a short period of �me. There are no criminal antecedents involving the pe��oner herein.

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Considering the facts and circumstances, we are inclined to grant bail. The pe��oner is directed to be released on bail in connec�on with FIR No. 334 of 2022 registered at Police Sta�on Jalangi District Murshidabad subject to such terms and condi�ons as may be imposed by the Trial Court.”

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In Hanef Kharsani @ Hanef Sheikh vs Union of India, the Hon’ble Supreme Court held as under:-

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“The appellant Hanef Kharsani @ Hanef Sheikh has been booked for the crime registered pursuant to NCB Crime No. 07/NCB/KOL/2023 dated 09.02.2023 in respect of offence punishable under Sec�ons 8 (c) and 21 (c) of the Narco�c Drugs and Psychotropic Substances Act, 1985 (for short, the NDPS Act'). The appellant preferred an applica�on under Sec�on 439 of the Code of Criminal Procedure, 1973 before the High Court seeking bail in the instant crime. The High Court noted that the narco�c substance i.e. 415 bo*les of Phensedyl Syrup containing codeine phosphate which is above commercial quan�ty was recovered from the appellant and in view of the statutory restric�ons under Sec�on 37 of the NDPS Act, the applica�on seeking bail was rejected.

¶128

It is submi*ed by the learned counsel for the appellant that the appellant was not in conscious possession of the offending material and that the prosecu�on has not complied with the requirements of the NDPS Act. Further, the appellant is in jail for approximately one year and two months and the trial is

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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not likely to be completed in the near future. Moreover, in certain iden�cal cases, the accused have been granted relief of bail by this Court. Therefore, the appellant may also be granted bail during the pendency of the trial.

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Learned counsel for the appellant also brought to our no�ce the fact that on comple�on of the inves�ga�on, the charge sheet has been filed and there are seven witnesses but the trial has not yet commenced.

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However, learned ASG appearing for the respondent submi*ed that this is not a fit case for grant of bail inasmuch as the quan�ty which has been recovered is over and above the commercial quan�ty and it has become a regular feature in that part of the country where enormous amounts of Phensedyl Syrup containing codeine phosphate is being recovered and, therefore, the applica�on seeking bail may be dismissed.

¶135

Considering the facts on record, in our view, the case for bail is made out.”

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In Ripon Seikh & ors. Vs State of West Bengal, Special Leave to Appeal (Crl.)

¶137

No.16663/2023, a Division Bench of Hon’ble Supreme Court held as under:-

¶138

[4]. On the other hand, having regard to the dura�on of custody since the pe��oners were arrested on 23.11.2022 and the nature of Contraband i.e., 73 bo*les of Phensedyl Syrup containing Codeine Phosphate recovered from the joint possession of the four accused, we deem it appropriate to grant bail to the pe��oners Ripon Seikh, Sahin Seikh and Babu Sk, in connec�on with FIR No. 310 of 2022 registered at P.S. Sagarparara, District Murshidabad. Appropriate bail condi�ons be imposed by the learned Special Court, Murshidabad. It is ordered accordingly.

¶139

In Nijam Sheikh @ Md. Nijam SK @ MD Nizam SK vs The State of West Bengal, MANU/SCOR/52031/2024, the Hon’ble Supreme Court held as under:-

¶140

“The appellant Nizam Sheikh Md. Nijam Sk Md. Nizam Sk has been booked for the crime registered pursuant to FIR No.90/22 dated 19.03.2022 lodged with Police Sta�on Lalgola, District Murshidabad, under Sec�on 21(C)/29 of the Narco�c Drugs and Psychotropic Substances Act, 1985 (NDPS Act' for short). The High Court noted that the narco�c substance i.e. 55 bo*les of phensedyl syrup containing codeine phosphate which is above commercial quan�ty was recovered from the appellant and in view of the statutory restric�ons under Sec�on 37 of the NDPS Act, the applica�on seeking bail was rejected.

¶141

Heard learned counsel for the appellant and counsel for the respondent-State.

¶142

It is submi*ed by the learned counsel for the appellant that the appellant was not in conscious possession of the offending material and that the prosecu�on has not complied with the requirements of Sec�on 52-A of the NDPS Act. Further, the appellant is in jail since 28.03.2022 and the trial is not likely to

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-25559-2024

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be completed in the near future. Therefore, the appellant may be granted bail during the pendency of the trial.

¶147

Learned counsel for the Respondent-State submi*ed that recording of evidence is to be commenced from tomorrow (i.e. 16.04.2024) and there are only eight (08) witnesses as per the charge sheet and the trial would be completed expedi�ously. Therefore, at this stage, the appellant need not be released on bail.

¶148

It was further submi*ed that the other seven (07) coaccused who were granted bail, are not coopera�ng with the trial of the case and therefore, this is not a fit case where bail may be granted to the appellant herein.

¶149

Considering the facts on record, in our view, the case for bail is made out.”

¶150

In Moidul Sarkar vs The State of West Bengal, Special Leave to Appeal (Crl.) No.15668/2023, Hon’ble Supreme Court held as under:-

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[3]. Having considered the dura�on of custody and the nature of Contraband i.e., 320 bo*les of Phensedyl Syrup seized from the pe��oner, we deem it appropriate to grant bail to the pe��oner Mohidul Sarkar in connec�on with FIR No. 224 of 2022 registered at P.S. Sagarpara. The similar orders passed by this Court in SLP (Criminal) No. 12911 of 2023 on 22.01.2024 and Criminal Appeal No. 409 of 2024 on 25.01.2024 also noted. are Appropriate bail condi�ons be imposed by the learned Special Court, Murshidabad. It is ordered accordingly.

¶152

In Saniya Bibi @ Soniya Bibi vs The State of West Bengal, Special Leave to Appeal (Crl.) No.2354/2024, Hon’ble Supreme Court held as under:-

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[3]. Mr. Dibyadyu� Banerjee for the pe��oner points out that the Contraband in ques�on is 105 bo*les of Phensedyl Syrup and the pe��oner, who is a lady, is in custody for about 2 years 3 months since he was arrested on 24.01.2022. That apart, the next date of trial is fixed on 23.07.2024 and although 16 witnesses are cited, not a single witness is examined so far.

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[4]. No�ce in this case was issued on 04.03.2024 and today the State counsel prays for �me to file counter affidavit.

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[5]. Having considered the circumstances and more par�cularly the dura�on of custody, the nature of the Contraband and the unlikely possibility of the trial geTng concluded on an early date, we deem it appropriate to grant bail to the pe��oner Saniya Bibi@ Soniya Bibi in connec�on with the FIR No. 30 of 2022 dated 24.01.2022 registered with P.S. Jalangi, District Murshidabad. It is ordered accordingly. Appropriate bail condi�ons be imposed by the learned trial court.

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In Saddam Hossain vs State of West Bengal, Special Leave to Appeal (Crl.) No.15496/2023, a Division Bench of Hon’ble Supreme Court held as under:-

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[2]. No�ce in this case was issued on 08.12.2023, with the towing order:-

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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“… The counsel refers to the FIR 37/2023 to point out that 72 boles of 100 ml Phensedyl Syrup were seized and since each 5 ml contains 10 mg of codiene phosphate, the total quan�ty of codeine phosphate in the 72 boles would be around 14.4 grams. Such quan�ty is below the s�pulated commercial quan�ty in the Schedule to the NDPS Act.

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It is further pointed out that the pe��oner has been in custody for 10 months and charges are yet to be framed in the ma*er.

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Issue no�ce on the plea for bail, returnable in four weeks.

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Das� no�ce on the standing Counsel for the State, in addi�on."

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[3]. Learned counsel for the state in his turn submits that evidence of witnesses is scheduled to commence in July 2024.

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[5]. Looking at the above facts and more par�cularly the nature of the contraband and the long custody of the pe��oner since 23.01.2023, we deem it appropriate to grant bail to the pe��oner. Accordingly the pe��oner (Saddam Hossain) be released on bail in connec�on with the case arising out of FIR No.37/2023 registered at P.S. Raninagar, District Murshidabad. Appropriate bail condi�on be imposed by the learned Trial Court.”

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In Bijon SK @ Golam Murselim vs The State of West Bengal, Special Leave to Appeal (crl.) No.6046/2024, a three Bench of Supreme Court held as under:-

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[1]. The pe��oner has been denied bail in connec�on with FIR No 252 of 2022 dated 16 November 2022 lodged at PS Doulatabad, District Murshidabad under Sec�ons 21(c), 22 (c) and 29 of the Narco�c Drugs and Psychotropic Substances Act 1985. The allega�on is that the pe��oner was the owner of a truck which was alleged to be used for the transport of 9075 bo*les of Phensedyl.

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[2]. The pe��oner is in custody since 5 August 2023. Charges have been framed. The prosecu�on proposes to examine 23 witnesses.

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[3]. Considering the above facts and circumstances, an early conclusion of the trial does not seem possible. Conscious as the Court is of the provisions of Sec�on 37 of the NDPS Act, we are of the view that the pe��oner should be released on bail, subject to such terms and condi�ons as may be imposed by the Special Court under NDPS Act, Berhampore, Murshidabad. Accordingly, the pe��oner is directed to be released on bail, subject to such terms and condi�ons as may be imposed by the Special Court under NDPS Act, Berhampore, Murshidabad in NDPS Case No 226 of 2022.”

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Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage.

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Per custody cer�ficate dated 03.09.2024, the pe��oner has been in custody

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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since 20.01.2021 and his total custody is 02 years, 11 months and 3 days.

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Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega�ons, and the other factors peculiar to this case, there would be no jus�fiability further pre-trial incarcera�on at this stage.

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Without commen�ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men�oned above, the pe��oner makes a case for bail. This order shall come into force from the �me it is uploaded on this Court's official webpage.

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Given above, provided the pe��oner is not required in any other case, the pe��oner shall be released on bail in the FIR cap�oned above subject to furnishing bonds to the sa�sfac�on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep�ng the surety, the concerned Court must be sa�sfied that if the accused fails to appear, such surety can produce the accused.

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While furnishing a personal bond, the pe��oner shall men�on the following personal iden�fica�on details:

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1.	AADHAR number
2.	Passport number (If available) and when the a*es�ng officer/court considers it appropriate or considers the accused a flight risk.
3.	Mobile number(If available)
4.	E-Mail id(If available)

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This order is subject to the pe��oner’s complying with the following terms.

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The pe��oner shall abide by all statutory bond condi�ons and appear before the concerned Court(s) on all dates. The pe��oner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.

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Given the background of allega�ons against the pe��oner, it becomes paramount to protect the drug detec�on squad, their family members, as well as the members of society, and incapacita�ng the accused would be one of the primary op�ons un�l the filing of the closure report or discharge, or acqui*al. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric�on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty,

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JYOTI 2024.09.17 14:05 I attest to the accuracy and integrity of this order/judgment.

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i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc�on]. Given the nature of the allega�ons and the other circumstances peculiar to this case, the pe��oner shall surrender all weapons, firearms, and ammuni�on, if any, along with the arms license to the concerned authority within fiVeen days from release from prison and inform the Inves�gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe��oner shall be en�tled to renew and take it back in case of acqui*al in this case, provided otherwise permissible in the concerned rules. Restric�ng firearms would ins�ll confidence in the vic�m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea�ng the offense.

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The condi�ons men�oned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe��on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail condi�ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor�onal to the purpose of imposing them. The courts, while imposing bail condi�ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi�ons that would result in the depriva�on of rights and liber�es must be eschewed.”

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Any observa�on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

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A cer�fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe��oner can download this order along with case status from the official web page of this Court and aest it to be a true copy. If the aes�ng officer wants to verify its authen�city, such an officer can also verify its authen�city and may download and use the downloaded copy for a*es�ng bonds.

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