UPKAR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present is a second 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. 21/3/2022, under Ss. 21(b), 25 and 29 of the NDPS Act, registered at Police Station Special Task Force (STF) Mohali, Punjab.

(2.) Learned counsel for the petitioner submitted that it is a case where the petitioner has faced incarceration for more than 1 year and 9 months and as per the allegations, there had been a recovery of 350 grams of heroin from the toolkit of a motorcycle which was allegedly being driven by the petitioner and there was one co-accused, who was a pillion rider. She further submitted that the present case has been planted upon the petitioner by the police only because of the reason that earlier he was falsely implicated in one other case under the NDPS Act and there has been no recovery from the conscious possession of the petitioner. She also submitted that be that as it may, the aforesaid ground that the petitioner has been falsely implicated gets substantiated from the fact that charges in the present case were framed by the learned trial Court on 25/4/2023 and thereafter, for about five times the matter was adjourned and none of the prosecution witnesses cared to depose before the Court. While referring to the zimni orders she also submitted that for about four times, even the petitioner was not produced before the learned trial Court by the jail authorities and there is no justification as to why he was not produced before the Court by the jail authorities. She further submitted that the learned trial Court has been repeatedly summoning the prosecution witnesses, who are none other but the police officials who themselves had set the criminal law into motion and there is no justification as to why for about 9 months the prosecution witnesses did not care to depose before the Court with a result that the custody of the petitioner got prolonged and now the total incarceration of the petitioner comes out to be more than 1 year and 9 months for no fault of his. She further submitted that although the alleged recovery from the petitioner was shown to be 350 grams of heroin from the toolkit of a motorcycle and as per the NDPS Act, the same falls in the category of commercial quantity but the bar contained under Sec. 37 of the NDPS Act will not apply to the petitioner in view of the aforesaid peculiar facts and circumstances of the present case where the prosecution witnesses themselves did not care to depose before the learned trial Court well in time and on repeatedly being summoned. She 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. She 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. She 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 1 year, 9 months and 19 days. He submitted that the till date none of the prosecution witnesses have been examined. However, on 30/11/2023, one prosecution witness, namely, ASI Nirmail Singh was given up by the learned Additional P.P. for the State being unnecessary at that stage. He further submitted that since the aforesaid quantity involved in the present case falls in the category of commercial quantity under the NDPS Act, the petitioner does not deserve the concession of regular bail.