HARWINDER SINGH ALIAS KAJU Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present is a second petition filed under Sec. 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner in case bearing FIR No.196 dtd. 7/8/2021, under Sec. 21 of the NDPS Act, 1985, registered at Police Station City Tarn Taran, District Tarn Taran.

(2.) It has been submitted by learned counsel for the petitioner that the petitioner is in custody for 2 years and 7 months and as per the allegation, there had been a recovery of 415 grams of Heroin from the present petitioner and 288 grams of Heroin from the other co-accused, namely, Buta Singh. She submitted that the aforesaid co-accused, namely, Buta Singh has already been extended the benefit of regular bail by a Co-ordinate Bench of this Court in CRM-M-12462-2023 on 24/1/2024 on the ground of delayed trial. She further submitted that it is a case where the petitioner has been falsely implicated because of the fact that earlier he was involved in three more cases under the NDPS Act, out of which, in two cases he has already been acquitted and in one case he was convicted and one more case under the Gambling Act. She further submitted that in the present case, the charges were framed by the learned trial Court on 20/5/2022 which is almost 1 year and 11 months ago, but till date only 1 out of 17 prosecution witnesses has been examined. She submitted that the witness, who has been examined during the aforesaid long period of time, is not even a material witness nor a part of police party, who had recovered the contraband, but was a person, who had deposited the sample with the laboratory. She submitted that in view of the aforesaid long incarceration and the stage of trial where the prosecution witnesses, who are none other but the police officials, are not coming forth to depose before the Court, the bar contained under Sec. 37 of the NDPS Act will not apply to the petitioner in the facts and circumstances of the present case and also in the light of the judgments of Hon'ble Supreme Court passed in 'Satender Kumar Antil Vs. Central Bureau of Investigation and another', 2022(10) SCC 51, Mohd Muslim (q) Hussain Vs. State (NCT of Delhi)', 2023 AIR(SC) 1648, Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh' 2023 SCC Online SC 918 and 'Rabi Prakash Vs. The State of Odisha' in Special Leave to Appeal (Criminal) No.4169 of 2023.

(3.) On the other hand, Mr. A.S. Pannu, learned A AG, Punjab on instructions from the police official, who is present in the Court has stated that it is correct that the petitioner has faced incarceration for 2 years and 7 months and it is also correct that the charges were framed in the present case on 20/5/2022 which is almost 1 year and 11 months ago and only one prosecution witness, who had deposited the sample with the laboratory, has been examined. He has however opposed the grant of regular bail to the petitioner on the ground that the recovered quantity from the petitioner was 415 grams of Heroin, which falls in the category of commercial quantity, and therefore, the prayer of the petitioner is hit by the bar contained under Sec. 37 of the NDPS Act. So far as the parity of the petitioner with the aforesaid co-accused, namely, Buta Singh is concerned, he has not disputed the same. He has opposed the bail also on the ground that the petitioner is a habitual offender and is involved in four more cases, out of which, three cases are pertaining to the NDPS Act, although he has been acquitted in two cases.