JAGTAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present is a third petition filed under Sec. 439 of the Code of Criminal Procedure for the grant of regular bail to the petitioner in FIR No.51 dtd. 17/3/2021, under Ss. 379-B, 411 of the IPC; Ss. 21, 29, 61, 85 of the NDPS Act and Ss. 25, 27, 54, 59 of the Arms Act, registered at Police Station Division No.6, Ludhiana, Punjab.

(2.) Learned counsel for the petitioner submitted that the petitioner is in custody for about 2 years and 10 months and charges in the present case were framed by the learned trial Court on 17/7/2023 and till date only one prosecution witness has been examined, who was only a formal witness, namely, Harjinder Singh, who was a person deputed to deposit the sample before the FSL. He further submitted that not even a single prosecution witness who was a part of the police party has been examined till date for the reasons best known to the State. He also submitted that the petitioner has been falsely implicated in the present case by alleging recovery of 60 grams of Diphenoxylate Hydrochloride, which is marginally higher than the commercial quantity under the NDPS Act only because of the reason that earlier he was involved in six more cases under the IPC and Arms Act. He further submitted that be that as it may, the trial of the case is not progressing and not even a single material witness has been examined till date and rather repeated warrants were issued to the prosecution witnesses but they have failed to depose before the learned trial Court for the reasons best known to them. He further submitted that the net result of the same is that the petitioner had to face incarceration for about 2 years and 10 months for no fault of his. He has referred to a judgment of the Hon'ble Supreme Court in Satender Kumar Antil versus Central Bureau of Investigation and another, [2022 (10) SCC 51] and contended that when there is a long custody, which is not attributable to the accused and the delay has been caused by the prosecution, then Rights under Article 21 of the Constitution of India are effected. He also referred to another judgment of Hon'ble Supreme Court in 'Mohd. Muslim @ Hussain versus State (NCT of Delhi)', 2023 AIR (SC) 1648, wherein the scope of Sec. 37 of the NDPS Act vis-a-vis Article 21 of the Constitution of India has been discussed by taking a serious view with regard to long trial. He further referred to a judgment of Hon'ble Supreme Court in 'Dheeraj Kumar Shukla versus The State of Uttar Pradesh', 2023 SCC Online SC 918 and also a judgment of Hon'ble Supreme Court in 'Rabi Prakash versus The State of Odisha', Special Leave to Appeal (Criminal) No.4169 of 2023 to contend that long custody itself is a ground for grant of bail notwithstanding the bar contained under Sec. 37 of the NDPS Act.

(3.) On the other hand, Mr. Rajiv Verma, DAG, Punjab has filed the custody certificate of the petitioner in Court today and the same is taken on record. As per the custody certificate, the petitioner is in custody for 2 years, 9 months and 24 days. He submitted that only one prosecution witness has been examined till date as aforesaid, who was only a formal witness. He has however opposed the grant of regular bail to the petitioner on the ground that the petitioner is a habitual offender and also the quantity recovered was 60 grams of Diphenoxylate Hydrochloride, which although is marginally higher than the commercial quantity under the NDPS Act but still the bar contained under Sec. 37 of the NDPS Act will apply to the petitioner.