IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision:-10.01.2025 Dharminder Singh ......Petitioner.

Versus State of Punjab ......Respondent.

CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI Present:- Mr. Yashpal Thakur, Advocate for the Petitioner.

Mr. Harkanwar Jeet Singh, AAG Punjab.

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JASJIT SINGH BEDI, J.(ORAL)

The Prayer in this fourth petition under section 439 Cr.PC is for the grant of regular bail in case FIR No.71 dated 21.07.2020 under Sections 15, 18, 61, 85 of the NDPS Act, 1985 registered at Police Station Kheri Nodh Singh, District Fatehgarh Sahib.

2. The brief facts of the case are that while the police party was on patrolling duty one canter was stopped coming from the side of village Fatehgarh Niwan being driven by a short hair person. On the conductor side one turbaned person was sitting. The said canter bearing No.PB-11-BF- 4598 was stopped on suspicion. The driver disclosed his name as Dharminder Singh (petitioner) and the persons sitting on the conductor seat disclosed his name as Saadh Singh @ Ghoki (since granted the concession of bail vide order dated 10.01.2023 in CRM-M-49898-2022). Thereafter another investigating officer came to the spot and after following due procedure, search of Dharminder Singh lead to the recovery of 1 Kg of Opium and the search of the petitioner yielded 500 grams of Opium. From the truck, 01 quintal 10 Kgs of poppy husk was recovered.

3. The learned counsel for the petitioner contends that he has been falsely implicated in the present case. The mandatory provisions of Sections 42 and 50 of the NDPS Act have not been complied with in their proper perspective. No independent witness was joined at the time of search and seizure. In one other case bearing FIR No.380 dated 02.07.2022 under Sections 08, 18 of the NDPS Act, 1985, P.S. Sihani Gate, he is on bail. As he was in custody for the last more than 02 years 07 months and 13 days and only 13 out of the 23 prosecution witnesses had been examined so far, the trial of the present case was not likely to be concluded anytime soon and therefore, he was entitled to the concession of bail in view of the judgment of the Hon’ble Supreme Court in the case of Nitish Adhikary @ Bapan Versus The State of West Bengal, SLP (Crl.) Nos.5769/2022 arising out of judgment and order dated 04.05.2022 in CRM(NDPS) No.442/2022, decided on 01.08.2022 and Hasanujjaman & others Versus The State of West Bengal, SLP (Crl.) No.(s).3221/2023 arising out of impugned final judgment and order dated 29.11.2022 in CRM(NDPS) No.1323/2022, decided on 04.05.2023

4. The learned State counsel on the other hand contends that the petitioner is a habitual offender with one other case bearing FIR No.380 dated 02.07.2022 under Sections 08, 18 of the NDPS Act, 1985, P.S. Sihani Gate, in which he is on bail. Therefore, in view of the bar contained under Section 37 of the NDPS Act, the petitioner was not entitled to the grant of bail. He, however, concedes that the petitioner had undergone actual custody of 02 years 07 months and 13 days and only 13 out of the 23 prosecution witnesses had been examined so far.

5. I have heard the learned counsel for the parties.

6. The Hon'ble Supreme Court in the case of Nitish Adhikary @ Bapan Vs. The State of West Bengal SLP (Crl.) Nos.5769/2022 Decided on 01.08.2022 held 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 2 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