29.04.2025 MALKIT SINGH ALIAS DULLA v. CORAM: HON’BLE
Case Details
CRM-M-410-2025 -1- 241 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-410-2025 Reserved on: 02.04.2025 Pronounced on: 29.04.2025 MALKIT SINGH ALIAS DULLA ...PETITIONER STATE OF PUNJAB ...RESPONDENT VERSUS CORAM: HON’BLE MR. JUSTICE ANOOP CHITKARA Argued by: Mr. P.S. Sekhon, Advocate and Mr. Kaushal Chahal, Advocate for the petitioner.
Legal Reasoning
[5]. Having considered the above and the fact that the trial is unlikely to conclude on a near date, we are of the view that the petitioner – Junaid Alam deserves to be granted bail. It is ordered accordingly. Renu Bala 2025.04.30 16:34 I attest to the accuracy and integrity of this document CRM-M-410-2025 -3- Appropriate bail conditions be imposed by the trial court. 11. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act. 12. In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 3047-2024, Hon’ble Supreme Court holds, [5]. We are inclined to set aside the impugned order only on the premise that right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarceration for more than one and a half years, the trial is yet to start, though, it is submitted by learned counsel appearing for the State that charges have been framed. Suffice it is to state that trial would take considerable length of time. There is no antecedent involving the appellant.
Arguments
Mr. Sukhdev Singh, AAG, Punjab. **** ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 73 14.10.2023 Rampura, Sadar District Bathinda 22 of NDPS Act, 1985 1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 Cr.P.C (483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS]), seeking regular bail. 2. 3. In para 14 of the bail application, the accused has no criminal antecedents. The facts and allegations are taken from the reply filed by the State. On 14.10.2023, based on a chance recovery, the Police seized 100 strips each containing 10 tablets; total 1000 intoxicating tablets of Tramadol from the petitioner’s possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 4. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 5. Counsel for the petitioner submits that the petitioner is in custody since a period of 01 year and 06 months and is not involved in any other case under NDPS Act. On instructions, he further submits that petitioner shall not indulge himself in the offence involving the commercial or intermediate quantity or the offence which falls under Section 19/24/27A of NDPS Act. He further submits that if the petitioner involves himself in the said offence, he has no objection if the State files application for cancellation of bail in all FIRs under NDPS Act, pending against the petitioner. He further contends that pre-trial incarceration would cause an irreversible injustice to the petitioner and their family. 6. 7. The State’s counsel opposes bail and refers to the reply. It would be appropriate to refer to para 5, 6 and 7 of the reply, which read as follows: Renu Bala 2025.04.30 16:34 I attest to the accuracy and integrity of this document CRM-M-410-2025 -2- "Role of the petitioner: 5. That the petitioner had the vital role in this case as the petitioner was the alone with the intoxicant substances. When the police officials apprehended the petitioner he was searching his polythene bag which contains intoxicant tablets. Evidence against the petitioner 6. That when the bag, which was carried by petitioner, was searched 1000 tablets of CELCIDALE-100 SR Tramadol Hydrochloride Tablets USP 100 mg were recovered from the petitioner. As the petitioner could not present any bill or licence to keep these tablets. 7. That thereafter, sample was sent for the report of RTFSL, Bathinda and when the report from the RTFSL received. It transpired from the report of the RTFSL that salt Tramadol Hydrochloride was found in the intoxicant tablets. As per the RTFSL report the average weight found in the tablet is 335 mg. Total 1000 tablets were recovered from the petitioner, the average weight is 1000 x 335 mg/1000 = 335 grams approx and this recovery falls withing the preview of the commercial quantity of the contraband." REASONING: 8. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. 9. Petitioner's custody in this FIR is 01 year, 05 months and 16 days. 10. However, the petitioner is entitled to bail because Hon’ble Supreme Court had granted bail on prolonged custody in the following judicial precedents: In Junaid Alam v. State of Uttarakhand, decided on 12 Aug 2024, SLP(Crl.) 7708- 2024, Hon’ble Supreme Court holds, [2]. It is pointed out that the petitioner has been in custody for last more than 18 months since he was arrested on 25.01.2023. It is then submitted that only 3 out of the 10 cited prosecution witnesses have been examined and they have not said anything to connect the petitioner with the crime. [3]. The learned counsel for the State would submit that the concerned Contraband are medicinal drugs but they are sold for profit. Moreover, it is of commercial quantity. [4]. We have perused the nature of the Contraband i.e., the prohibited medicines (SYP Codectus 100 Bottles (100 Ml each), Cap Pyeevon Spas Plus 720 Cap Parvion Spas 800 Capsules, Spasonof NF 960 capsules, Capsules Spasmoproxyvon Plus 144, Proxywell Spas 2568 Capsules, Alprasafe Table 600 Tablets, Pyeevon Spas Plus 32 Capsules).
Decision
[6]. Accordingly, the impugned order is set aside and the appellant is granted bail, subject to the conditions that may be imposed by the Trial Court. 13. Given the above, based on the petitioner’s pretrial custody; the petitioner is entitled to bail under Article 14 of the Constitution of India. 14. Per the custody certificate dated 01.04.2025, the petitioner's custody in this FIR is around 01 year and 06 months. Given the drugs were medicines that attracted violation of S. 22 of NDPS Act, viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order. 15. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage. CONDITIONS: 16. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused. 17. While furnishing a personal bond, the petitioner shall mention the following personal identification details: 1. AADHAR number 2. Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 18. Renu Bala 2025.04.30 16:34 I attest to the accuracy and integrity of this document This order is subject to the petitioner’s complying with the following terms. CRM-M-410-2025 -4- 19. The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court. 20. Given the background of allegations against the petitioner, it becomes paramount to protect the members of society, detection squad and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearms. [This restriction is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a reasonable doubt; and as such, it is not to be construed as an intermediate sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense. 21. The conditions mentioned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.” 22. In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon’ble Supreme Court holds in Para 7, “It goes without saying that if the petitioner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences.” 23. This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State shall file an application for cancellation of this bail before the Trial Court, which shall be at liberty to cancel this bail. 24. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. Renu Bala 2025.04.30 16:34 I attest to the accuracy and integrity of this document CRM-M-410-2025 -5- 25. A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 26. Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of. 29.04.2025 renubala Whether speaking/reasoned: Whether reportable: Yes/No Yes/No ( ANOOP CHITKARA) JUDGE Renu Bala 2025.04.30 16:34 I attest to the accuracy and integrity of this document