Punjab-Haryana High Court
Balwinder Ram Alias Mimi vs State Of Punjab on 6 September, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:116730
CRM-M-5957-2024 (O&M) 1
205
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-5957-2024 (O&M)
Date of decision : 06.09.2024
Balwinder Ram alias Mimi ....Petitioner
Versus
State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present : Mr. R.P. Dhir, Advocate for the petitioner.
Mr. Soloman Partap Singh, AAG, Punjab.
PANKAJ JAIN, J. (ORAL)
1 This petition has been filed under Section 439 Cr.P.C. for grant
of regular bail in case F.I.R. No.46 dated 14.06.2023 registered under
Section 22(c) of NDPS Act, 1985 at Police Station Ladhuwal, District
Ludhiana.
2 As per the case of the prosecution during patrolling the
petitioner was apprehended carrying a polythene bag in his hand. On
suspicion he was inquired and searched in the presence of gazetted officer
and was found to be in possession of 295 grams of heroin.
3 Learned counsel for the petitioner submits that the prosecution
has concocted a false story. Petitioner was apprehended from his village and
was falsely implicated in the present case. The charges in the present case
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were framed on 30.11.2023. By now, out of 16 cited witnesses only 1 could
be examined despite the fact that most of the witnesses are official.
4 Custody certificate has been produced, which is taken on
record. As per the same, the petitioner is behind bars for more than 1 year, 2
months and 21 days.
5 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:
“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.”
6 Earlier to Rabi Prakash’s case (supra) also Apex Court has
consistently held that the prolonged incarceration has to be considered
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
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titled as “Mohammad Salman Hanif Shaikh vs. The State of Gujarat”,
held as under:-
“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.
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.
The special leave petition is, accordingly, disposed of in
the above terms.
Pending application(s), if any, shall also stand disposed
of.”
7 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.
8 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
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
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approximately. The relevant portion of the said order dated 07.02.2020 is as
under: –
“Leave granted.
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.
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 21-C of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
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.
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.
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:
(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.
(b) The Special Court may impose such other conditions
as it deems appropriate to ensure the presence and
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participation of the appellant in the pending trial.
With the aforesaid directions, the appeal stands
allowed.”
9 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: –
“Leave granted.
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.
The application seeking relief of bail having been
rejected, the instant appeal has been filed.
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.
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.
We therefore, direct that:
(a) The appellant shall be produced before the Trial
Court within five days from today.
(b) The Trial Court shall release the appellant on bail
subject to such conditions as the Trial Court may deem
appropriate to impose.
(c) The appellant shall not in any manner misuse his
liberty.
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(d) Any infraction shall entail in withdrawal of the
benefit granted by this Order.
The appeal is allowed in aforesaid terms.”
10 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: –
“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.
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.
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.
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.
The petitioner is accordingly, directed to be released on
bail subject to him furnishing bail bonds to the satisfaction of the
Trial Court.
The Special Leave Petition is disposed of on the
aforestated terms.
Pending application(s), if any, shall stand disposed of.”
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11 Learned State counsel is not in a position to dispute the
aforementioned factual assertions based on record.
12 I have heard learned counsel for the parties and have gone
through the records of the case.
13 Without commenting on the merits of the case, keeping in view
the incarceration undergone by the petitioner, the present petition is allowed.
The petitioner is ordered to be released on bail on his furnishing bail/surety
bonds to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned.
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:
(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.
(iii) The petitioner shall not absent himself on any date before the
trial.
(iv) The petitioner shall not commit any offence while on bail.
(v) The petitioner shall deposit his passport, if any with the trial
Court.
(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.
(vii) The petitioner shall not in any manner try to delay the trial.
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14 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.
15 Ordered accordingly.
16 Needless to say that anything observed herein shall not be
construed to be an opinion on the merits of the case.
17 Pending application, if any, shall also stand disposed off.
September 06, 2024 (Pankaj Jain)
Dpr Judge
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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