Sukhchain Singh @ Bhujia v. State of Punjab

VIKAS BAHL, J.(ORAL)

¶1This is the third petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR no.81 dated 07.05.2022 registered under Sections 307, 353, 186, 34 IPC and Section 21(C) of the NDPS Act and Section 25 of the Arms Act (Section 473 IPC added later on) at Police Station Sadar Faridkot, District Faridkot.

¶2Status report by way of affidavit of Shamsher Singh, Deputy Superintendent of Police, Sub Division Faridkot has been filed by learned State counsel today in the Court, which is taken on record.

¶3Learned counsel for the petitioner has submitted that the petitioner has been in custody since 07.05.2022 (more than 2 years and 1 month) and there are 37 witnesses and since the charges have not been CRM-M -13727-2024 2 framed, thus, the trial is likely to take time. It is submitted that the last bail application of the petitioner was dismissed as withdrawn on 14.02.2024 with liberty to file a fresh petition after giving full and better particulars. It is further submitted that the bail application filed prior to the said application was dismissed as withdrawn at that stage on 25.09.2023 and sufficient time has elapsed since passing of order dated 25.09.2023 but the trial has not made any progress and thus, the petitioner deserves the concession of regular bail on account of long custody as further incarceration would be violative of the right of the petitioner enshrined under Article 21 of the Constitution of India. Learned counsel for the petitioner has relied upon various orders of the Hon'ble Supreme Court, wherein, solely on the basis of the length of custody, the concession of bail has been granted. Reliance has also been placed upon an order of the Hon'ble Division Bench of this Court in CRM-3773-2019 in CRA-D-198-DB-2017 in case titled as "Bhupender Singh Vs. Narcotic Control Bureau". It is submitted that in the present case, no injury has been caused to any person and all the witnesses are official witnesses and thus, the question of the petitioner influencing them does not arise. It is further submitted that the petitioner is not an accused in the RPG attack case that took place in Mohali and that since the investigation is complete, thus, no purpose would be served by keeping the petitioner in custody.

¶4Learned State counsel has opposed the present petition for regular bail and has submitted that the petitioner along with three other 2024.07.05 17:40 persons was apprehended at the spot and total recovery of 1 kg. heroin CRM-M -13727-2024 3 was effected from them and the same is commercial quantity and thus, the bar under Section 37 of the NDPS Act would apply in the present case. It is further submitted that recovery of one pistol (32 bore) was also effected from the petitioner and on unloading the same, two live cartridges were also recovered. It is stated that the petitioner is involved in other cases also and thus, is a habitual offender. Other facts have however, not been disputed.

¶5Learned counsel for the petitioner, in rebuttal, has relied upon the judgment of Hon'ble Supreme Court in "Maulana Mohd. Amir Rashadi vs. State of U.P. and another", reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen while deciding a bail application and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in other cases. The relevant portion of the said judgment is reproduced hereinbelow:- "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."

¶6This Court has heard learned counsel for the parties and has gone through the paper book.

¶7Hon'ble the Supreme Court vide order dated 04.05.2023 passed in Special Leave to Appeal (Crl.) No(s).3221/2023 in case titled as 2024.07.05 17:40 Hasanujjaman and others Vs. The State of West Bengal, had observed as CRM-M -13727-2024 4 under:- "xxx xxx xxx xxx. They were arrested on the spot and have been in custody for more than one year and four months.

¶3We have heard learned counsel for the parties and carefully perused the record.

¶4The investigation is complete; chargesheet has been filed, though the charges are yet to be framed. The conclusion of trial will, thus, take some reasonable time, regardless of the direction issued by the High Court to conclude the same within one year from the date of framing of charges. The petitioners do not have any criminal antecedents. There is, thus, substantial compliance of Section 37 of the NDPS Act.

¶5In such circumstances, but without expressing any views on the merits of the case, we deem it appropriate to release the petitioners on bail subject to the terms and conditions as may be imposed by the Trial Court.

¶6Additionally, it is clarified that in case the petitioners are found involved in any other case under the NDPS Act or other penal law, it shall amount to misuse of the concession of bail granted to them today, and in such a case, necessary consequences shall follow.

¶7The petitioners are further directed to appear before the Trial Court regularly. In the event of they being absent, it shall again be taken as a misuse of concession of bail.

¶8The Special Leave Petition stands disposed of in the above terms.

¶9As a result, pending interlocutory application also stands disposed of." A perusal of the same would show that in the abovesaid case, the custody of the accused was 1 year and 4 months and while taking into Davinder Kumar consideration the fact that investigation has been completed and that the CRM-M -13727-2024 5 conclusion of trial would take time, the Hon'ble Supreme Court was pleased to grant regular bail to the petitioners therein.

¶8The Hon'ble Supreme Court in case titled as "Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, vide order dated

22.08.2022 passed in Special Leave to Appeal (Crl.) No.5530-2022 was pleased to observe 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." The above-said case was also a case under the NDPS Act 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 Hon'ble Supreme Court had observed that the concession of bail was being 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.

¶9Hon'ble Supreme Court in Criminal Appeal No.245/2020 titled CRM-M -13727-2024 6 as "Chitta Biswas Alias Subhas Vs. The State of West Bengal", vide order dated 07.02.2020, 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 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 2024.07.05 17:40 Rs.2 lakhs with two like sureties to the satisfaction of the CRM-M -13727-2024 7 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 participation of the appellant in the pending trial. With the aforesaid directions, the appeal stands allowed."

¶10In another case i.e., Criminal Appeal No.1169 of 2022 titled as "Gopal Krishna Patra @ Gopalrusma Vs. Union of India,", vide order dated 05.08.2022, the Hon'ble Supreme Court was pleased to observe 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 2024.07.05 17:40 Trial Court within five days from today. CRM-M -13727-2024 8

(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.

(d) Any infraction shall entail in withdrawal of the benefit granted by this Order. The appeal is allowed in aforesaid terms." A perusal of the above-said order would show that in the said case the custody was of approximately 2 years, 1 month and 17 days and the case was under the NDPS Act and primarily, considering the longevity of the custody period, concession of bail was granted to the petitioner (therein).

¶11The Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.) No.5769/2022 titled as "Nitish Adhikary @ Bapan Vs. The State of West Bengal", vide order dated 01.08.2022, was pleased to observe 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 Davinder Kumar that the petitioner has undergone custody for a period of CRM-M -13727-2024 9 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." A perusal of the said order would also show that the said case was under the NDPS Act and the provisions of Section 37 of the NDPS Act were also mentioned in the same and the bail was granted primarily by considering that the petitioner (therein) had undergone custody for a period of 01 year and 07 months and only one witness had been examined and that the petitioner (therein) did not have any criminal antecedents.

¶12The Hon'ble Division Bench of this Court in Bhupender Singh's case (supra), had held that in case, the accused person is able to make out a case within the parameters of Article 21 of the Constitution of India on the basis of long period of custody, then he deserves the concession of regular bail, even in the face of rigors of Section 37 of the NDPS Act. Davinder Kumar 13. A Coordinate Bench of this Court vide order dated 24.04.2023 CRM-M -13727-2024 10 passed in CRM-M-19626-2022 titled as Roop Singh Vs. State of Punjab had granted the concession of regular bail in a case involving recovery of commercial quantity of poppy husk where the custody was for a period of 1 year, 6 months and 26 days on the ground of long incarceration of the accused person being in violation of right of the accused for speedy trial enshrined under Article 21 of the Constitution of India.

¶14In the present case, the petitioner is in custody since

07.05.2022 (more than 2 years 1 month) and the investigation is complete and challan has been presented and out of 37 prosecution witnesses, none have been examined and even the charges have not been framed and thus, the conclusion of trial is likely to take time and keeping the petitioner in further incarceration would be violative of his right enshrined under Article 21 of the Constitution of India. It is further relevant to note that in the present case, no injury has been caused to any person and all the winteses are official witnesses and thus, the question of the petitioner influencing them does not arise and further it is not in dispute that the petitioner is not an accused in the RPG attack case which took place in Mohali and recovery has already been effected from the present petitioner.

¶15Keeping in view the above-said facts and circumstances as well as the law laid down in the above-said judgments, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail / surety bonds to the satisfaction of the concerned trial Court/ Duty Magistrate and subject to him not being required in any other case.

¶16Nothing stated above shall be construed as a final expression of I attest the accuracy and opinion on the merits of the case and the trial would proceed independently CRM-M -13727-2024 11 of the observations made in the present case which are only for the purpose of adjudicating the present bail petition. (VIKAS BAHL) JUDGE July 05, 2024

CRM-M -13727-2024 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRM-M -13727-2024 Date of decision : 05.07.2024 Sukhchain Singh alias Bhujia ... Petitioner Versus State of Punjab ... Respondent CORAM: HON'BLE MR.JUSTICE VIKAS BAHL Present: Mr.Sandeep Verma, Advocate for the petitioner. Mr.Salil Sabhlok, Sr.DAG, Punjab (through V.C.).