DALBIR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present petition has been filed under Sec. 439 of the Code of Criminal Procedure for the grant of regular bail to the petitioner in FIR No.274 dtd. 4/12/2018, under Sec. 22 of the NDPS Act, 1985, registered at Police Station Kotwali, Kapurthala.

(2.) It has been submitted by the learned counsel for the petitioner that the petitioner is in custody since 29/3/2022. He submitted that it is a case where as per the prosecution story, the police party was patrolling and they saw the petitioner, who on looking at the police party threw away the packet from his right pocket and thereafter the packet was confiscated in which 20 injections of Buprenorphine were recovered containing 2 ml each. He submitted that thereafter since the FSL report did not come, the petitioner was released on interim bail by the learned Trial Court. He submitted that the petitioner, while on interim bail, was never informed with regard to the fact that the FSL report has come and thereafter when the FSL report was filed alongwith challan, the petitioner was absent because he was not taken for the purpose of submitting the challan. He submitted that the petitioner was in custody in some other case and thereafter when the case was taken up for consideration on framing of charges on 29/3/2022 he was produced on the basis of production warrant pertaining to some other case and that is why his total custody is about 10 months and 3 days. He has submitted that although the petitioner is involved in some other cases pertaining to small quantity under the NDPS Act but so far as the present case is concerned, the petitioner is entitled for the grant of bail on various grounds. Firstly, the alleged confiscation was of 20 injections of Buprenorphine of 2 ml each which comes to total of 40 ml, which is slightly higher than the commercial quantity under the NDPS Act. But since the petitioner was carrying the injections of Buprenorphine for medical purposes and for that purpose prescription is not required, he is covered under Rule 66 of the NDPS Rules and for that purpose, he is not required to have any medical prescription in this regard. He also relied upon a judgment of this Court in Sukhwinder Singh @ Vicky v. State of Punjab 2021 (1) RCR (Crl.) 177 in this regard. Secondly, the alleged 20 injections of Buprenorphine were recovered from the ground even as per the prosecution story but thereafter the petitioner was searched personally also by ASI Rajinder Kumar, who was called by the other ASI namely Tarsem Singh, who had stopped the petitioner. He referred to Annexure P6 to state that although he was searched personally but the provisions of Sec. 50 of the NDPS Act were not complied since no offer was given to the petitioner for being searched either by a Magistrate or a Gazetted Officer. Thirdly, the charges in the present case were framed on 29/3/2022. Thereafter, the matter was adjourned from time to time for summoning of the prosecution witnesses but they failed to depose before the learned trial Court. During the course of arguments, learned counsel for the petitioner has supplied photocopies of the zimini orders which were passed by the learned trial Court after the framing of the charges. The charges were framed on 29/3/2022 and the matter was adjourned to 19/4/2022 and on that day, no PW was present. It was again adjourned to 10/5/2022 and it was observed by the learned trial Court that no PW is present and even the petitioner was not produced by the jail authorities, therefore, fresh summons were issued to the unexamined PWs and the matter was adjourned to 14/6/2022 and again the petitioner was not produced by the jail authorities and no PW was present. Therefore, again fresh summons were issued to the un-examined PWs. Thereafter the matter was adjourned to 5/7/2022 and on that date again no PW was present and the petitioner was not produced by the jail authorities. The learned trial Court observed that summons issued to PW ASI Rajinder Kumar have been received back duly served but he has not turned up and therefore bailable warrants were issued against him in the sum of Rs.5,000.00 with one surety in the like amount and the remaining PWs were also summoned. Thereafter, on 26/7/2022 again no PW was present and the petitioner was again not produced by the jail authorities and even the bailable warrants issued to PW ASI Rajinder Kumar received duly served but he still did not turn up and again bailable warrants were issued against him in the sum of Rs.5,000.00 and the remaining PWs were also summoned. Thereafter, on 16/8/2022 again the petitioner was not produced by the jail authorities and PWs were summoned as per the previous order. Thereafter, on 21/8/2022 again the petitioner was not produced by the jail authorities and no PW was present and then for the third time, PW ASI Rajinder Kumar, who is the material witness in the present case, was again summoned through bailable warrants. On 19/9/2022, again the petitioner was not produced by the jail authorities and again no PW was examined and the PWs were again summoned. Yet again, for the fourth time on 10/10/2022 again no PW was present and PW ASI Rajinder Kumar was again summoned through bailable warrants. The matter was then fixed for 1/11/2022 and again the petitioner was not produced by the jail authorities and no PW was examined. Learned counsel for the petitioner submitted that for about 10 dates the matter was adjourned by the learned Special Court and it is very surprising that four times bailable warrants were issued against PW ASI Rajinder Kumar, who as per the prosecution, was the person who had confiscated 20 injections of Buprenorphine from the petitioner. He submitted that no justification is coming forward as to why the police personnel, who have themselves put the criminal law into motion failed to depose themselves before the Court with the result that the entire trial has been delayed for no fault of the petitioner. Learned counsel for the petitioner has referred to a latest judgment of the Hon'ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation and another 2022 AIR (SC) 3386 in this regard that such kind of adjournments should not be granted and it affects the right of speedy trail of the accused persons.

(3.) On the other hand, Mr. Kunal Vinayak, learned AAG, Punjab has submitted that so far as the custody period of the petitioner is concerned, the same is correct and it is also correct that for a number of times the matter was adjourned from time to time by the learned Special Court but no PW was present however, yesterday one PW has been examined namely ASI Tarsem Kumar who had called the other ASI namely Rajinder Kumar but the aforesaid ASI Rajinder Kumar did not come forward for deposing despite the fact that four times bailable warrants were issued against him by the learned trial Court. I have heard the learned counsel for the parties.