Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 215

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
VIKAS BAHL, J.
Kulwant Kaur @ Kanto @ Banto – Petitioner
Versus
State of Punjab – Respondent
CRM-M No. 21346-2023
Decided On : 21-07-2023

Advocates:
Advocate Appeared:
For the Petitioner: P.S. Sekhon.
For the Respondent: Rohit Bansal.

The length of custody, completion of investigation, and likelihood of trial taking time are relevant factors in granting bail in cases under the NDPS Act. The right of the accused under Article 21 of the Constitution of India may be violated if they are kept in further incarceration.

Headnote:
NDPS Act - Sections 21, 22-C, 29, 37 - The court analyzes the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, particularly Section 37, which imposes restrictions on granting bail in cases involving commercial quantity of drugs. The court considers the relevance of these provisions in the present case and concludes that the petitioner is entitled to bail.
Fact of the Case:
The petitioner has filed a bail application under Section 439 of Cr.P.C. in a case registered under Sections 21, 22-C and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The petitioner has been in custody since 25.11.2021 and the trial is likely to take time. The petitioner argues that she is not involved in any other case under the NDPS Act and her continued incarceration would violate her right under Article 21 of the Constitution of India. The State opposes the bail application, citing recovery of drugs and drug money from the petitioner. The court considers various Supreme Court orders granting bail in similar cases and concludes that the petitioner is entitled to regular bail. The court imposes certain conditions on the petitioner's release.
Finding of the Court:
The court analyzes various Supreme Court orders granting bail in cases under the NDPS Act where the accused had spent a significant period in custody. The court observes that the length of custody, completion of investigation, and likelihood of trial taking time are relevant factors in granting bail. The court also considers the provisions of Section 37 of the NDPS Act, which impose restrictions on granting bail in cases involving commercial quantity of drugs. The court concludes that the petitioner's right under Article 21 of the Constitution of India would be violated if she is kept in further incarceration.
Ratio Decidendi: The court holds that the petitioner is entitled to regular bail considering the length of custody, completion of investigation, and likelihood of trial taking time. The court imposes certain conditions on the petitioner's release to ensure her presence and participation in the trial. The court clarifies that any involvement of the petitioner in another case under the NDPS Act would result in the withdrawal of bail. The court also emphasizes that the observations made in the present case are only for the purpose of adjudicating the bail petition and do not express a final opinion on the merits of the case.
Result: The court grants regular bail to the petitioner on the condition of furnishing bail/surety bonds and subject to her not being required in any other case. The petitioner is directed to abide by certain conditions, and any breach of these conditions may result in the cancellation of bail. The court clarifies that its decision does not express a final opinion on the merits of the case and the trial court would proceed independently.

JUDGMENT :

VIKAS BAHL, J.

1. This is the third petition filed under Section 439 of Cr.P.C. for grant of regular bail to the petitioner in FIR No. 114 dated 24.11.2021 registered under Sections 21, 22-C and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Badali Ala Singh, District Fatehgarh Sahib.

2. Learned counsel for the petitioner has submitted that the petitioner is in custody since 25.11.2021 and the investigation is complete and challan has been presented and there are 19 prosecution witnesses, out of which, 12 witnesses are yet to be examined and thus, the conclusion of trial is likely to take time. It is also contended that the first bail application of the petitioner was dismissed as withdrawn at that stage on 29.11.2022 and thereafter, the petitioner had filed a second petition seeking interim bail which was withdrawn on 21.03.2023 and since, the second petition was for grant of interim bail, thus, in effect, the present petition is the second regular bail application. It is further submitted that even after withdrawal of the last petition, sufficient time has lapsed and yet the trial has not concluded thus, entitling the petitioner to file the present bail petition. It is contended the petitioner is not involved in any other case under the NDPS Act. It is further contended that the petitioner is a woman and neither she was arrested on the spot and nor was named in the FIR nor there was any secret information against her and she has been implicated in the case on the basis of disclosure statement made by the main accused namely, Mohammad Aslam and keeping in view the length of the custody undergone by the petitioner, she deserves the concession of regular bail, as any 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 custody, the 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.

3. On the other hand, learned State counsel has opposed the present petition for grant of regular bail to the petitioner and has submitted that after the petitioner was nominated vide the disclosure statement of the main accused Mohammad Aslam, recovery of 52 grams of heroin and 1410 Diphenoxylate tables has been effected from the petitioner and the said recovery falls within the category of commercial quantity and thus, the bar under Section 37 of the NDPS Act would apply in the present case. It is further submitted that Rs. 52,000/- drug money has also been recovered from the present petitioner.

4. This Court has heard learned counsel for the parties and has gone through the paper-book.

5. Hon’ble the Supreme Court vide order dated 04.05.2023 passed in Special Leave to Criminal Appeal No. 3221/2023 in case titled as Hasanujjaman and Others vs. State of West Bengal, had observed as under:

“...........They were arrested on the spot and have been in custody for more than one year and four months.

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

4. The investigation is complete; charge-sheet 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.

5. In 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.

6. Additionally, it is clarified that in case the petit