Punjab-Haryana High Court
Anil Kumar vs State Of Punjab on 30 January, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:014139
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-59523-2024
Reserved on: 09.01.2025
Pronounced on: 30.01. 2025
Anil Kumar ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Argued by: Mr. Kartar Singh, Advocate
for the petitioner.
Mr. Akshay Kumar, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections 113 14.06.2023 Lehra, Distrcit Sangrur 22/29/61/85 of the NDPS Act
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439 Cr.P.C, seeking regular bail.
2. Par paragraph 12 of the bail application and reply dated 08.01.2025, the accused
has the following criminal antecedents:
Sr. No. FIR Dated Sections Police Station
No.
1. 69 25.09.2023 22 (C), 29 of the Sadar Rampura, District
NDPS Act Bathinda
2. 21 13.04.2023 22, 29 of the NDPS Khanauri
Act
3. The facts and allegations are taken from the reply filed by the State. On June 14,
2023, based on secret information, the Police seized 38 bottles of cough syrup (100 ml
each) and 250 tablets from the joint possession of Birbal Singh and Shavinderpal Singh.
The Investigator claims to have complied with all the statutory requirements of the NDPS
Act, 1985, and CrPC, 1973. During the custodial interrogation of the accused disclosed
the petitioner as the supplier of the drugs; based on the disclosure statement, the police
arraigned the petitioner as an accused by incorporating S. 29 of the NDPS Act.
4. The petitioner’s counsel prays for bail by imposing any stringent conditions and
contends that further pre-trial incarceration would cause an irreversible injustice to the
petitioner and their family.
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5. The State’s counsel opposes bail and refers to the reply.
6. As per the prosecution, 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.
7. In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077-
2022, decided on 13-05-2022, this court observed as follows:
[10]. Thus, both the twin conditions need to be satisfied before a
person accused of possessing a commercial quantity of drugs or
psychotropic substance is to be released on bail. The first condition is
to provide an opportunity to the Public Prosecutor, enabling to take a
stand on the bail application. The second stipulation is that the Court
must be satisfied that reasonable grounds exist for believing that the
accused is not guilty of such offence, and is not likely to commit any
offence while on bail. If either of these two conditions is not met, the
ban on granting bail operates. The expression “reasonable grounds”
means something more than prima facie grounds. It contemplates
substantial probable causes for believing that the accused is not guilty
of the alleged offence. Even on fulfilling one of the conditions, the
reasonable grounds for believing that the accused is not guilty of such
an offence, the Court still cannot give a finding on assurance that the
accused is not likely to commit any such crime again. Thus, the grant
of bail or denial of bail for possessing commercial quantity would vary
from case to case, depending upon its facts.
[31]. Satisfying the fetters of S. 37 of the NDPS Act is candling the
infertile eggs. The stringent conditions of section 37 placed in the
statute by the legislature do not create a bar for bail for specified
categories, including the commercial quantity; however, it creates
hurdles by placing a reverse burden on the accused, and once crossed,
the rigors no more subsist, and the factors for bail become similar to
the bail petitions under general penal statutes like IPC.
8. It would be appropriate to refer to the evidence collected against the petition,
which is taken from the reply, which reads as follows:
“6. That during interrogation, both the accused Birbal Singh @ Bittu and
Shavinderpal disclosed that they used to bring intoxicant vials and intoxicant
tablets from Anil Kumar s/o Balwan Singh @ Balwinder Singh r/o house
no. 579, street no. 3, Bahadurgarh (Haryana). The intoxicant tablets and
vials, which were recovered from their possession that were supplied to
them by Anil Kumar. On the basis of said disclosure, above said Anil
Kumar son of Balwan Singh @ Balwinder Singh was nominated as an
accused in this case on 15.06.2023 and offence u/s 29 NDPS Act wasadded.”
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THE ROLE OF THE PETITIONER.
The present FIR was registered against accused namely Birbal Singh @ Bittu
and Shavinderpal on the basis of secret information received by ASI Satpal
Singh Police Post, Chotian. During investigation both the accused were
apprehended by S.1. Harminder Singh and 38 intoxicant vials marka ONREX
100/100 ML and 25 strips each containing 10/10 tablets total 250 intoxicant
tablets marka Carisoprodol tablets IP Carisoma Tablets were recovered from
their conscious possession in the presence of Sh. Pushpinder Singh PPS,
DSP, Lehra. During interrogation both the above said accused disclosed that
they used to bring intoxicant vials and intoxicant tablets from Anil Kumar
s/o Balwan Singh@ Balwinder Singh r/o house no. 579, street no. 3,
Bahadurgarh (Haryana). On the basis of their disclosure, Anil Kumar (present
petitioner) was nominated as an accused in this case on 15.06.2023 and
offence u/s 29 NDPS Act was added. Accused/petitioner Anil Kumar was
arrested on 19.10.2023. During interrogation he admitted this very fact that,
he used to supply the intoxicant tablets and intoxicant vials to Birbal Singh
@Bittu and Shainverpal. The intoxicant vials and tablets, which were
recovered from the possession of Birbal Singh @ Bittu and Shavinderpal, that
were supplied to them by him. So, a specific role is attributed to the petitioner
in the commission of present offence.
B. THE EVIDENCE AGAINST THE PETITIONER.
That the present FIR was registered against Birbal Singh @ Bittu and his co-
accused Shavinderpal. Both the accused were apprehended on 14.06.2023 at
the spot and from their possession 38 intoxicant vials marka ONREX 100/100
ML. and 25 strips each containing 10/10 tablets total 250 intoxicant tablets
marka Carisoprodol tablets IP Carisoma Tablets were recovered. Accused
Shavinderpal has mobile phone no. 98764-XXXXX and petitioner/accused
Anil Kumar son of Balwan Singh@ Balwinder Singh has mobile phone no. is
93501-XXXXX. According to the disclosure made by accused Shavinderpal,
he used to bring drugs from the Anil Kumar. The call detail records of both
the mobile phones of accused Shavinderpal and Anil Kumar (present
petitioner) was obtained, which on examination revealed that there were
conversations between the two on 03.06.2023, 07.06.2023 and 14.06.2023.
So, the complicity of petitioner in the commission of present offence has been
proved.”
9. Thus, the evidence collected so far consists of disclosure statements without any
discovery of fact. However, the calls between the petitioner and the co-accused have not
been explained by the petitioner.
10. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a
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three-member bench holds as follows:
We answer the reference by stating:
(i) That the officers who are invested with powers under section 53 of the
NDPS Act are “police officers” within the meaning of section 25 of the
Evidence Act, as a result of which any confessional statement made to
them would be barred under the provisions of section 25 of the Evidence
Act, and cannot be taken into account in order to convict an accused
under the NDPS Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot
be used as a confessional statement in the trial of an offence under the
NDPS Act.
11. The status report filed by the police reveals that the investigator arraigned the
petitioner as an accused only on the disclosure statement of the main accused, from
whose possession the investigator had recovered the contraband
12. Further, the petitioner has criminal antecedents, as mentioned above.
13. As per paragraph 11 (D) of the reply filed to the bail petition, the petitioner has
been in custody for 1 year 2 months and 17 days.
14. The cumulative effect of the nature of evidence, pre-trial custody, and the criminal
history is that given the nature of medicinal drugs, which contain majority of alcohol and
sugar syrup, this Court ignores the criminal history for the purpose of bail and the pre-
trial custody of around one year and three months seems justifiable in the given
circumstances.
15. The petitioner is entitled to bail because Hon’ble Supreme Court had granted bail
on prolonged custody in the following judicial precedents:
1) In Chitta Biswas v. The State of West Bengal, CrA 245-2020, decided on
February 7, 2020, Hon’ble Supreme Court holds,
According to the prosecution, the appellant was found to be in
possession of narcotic substance i.e. 46 bottles of phensydryl
cough syrup containing codeine mixture above commercial
quantity.
The appellant was arrested on 21.07.2018 and continues to be in
custody. It appears that out of 10 witnesses cited to be examined in
support of the case of prosecution four witnesses have already been
examined in the trial.
Without expressing any opinion on the merits or demerits of the
rival submissions and considering the facts and circumstances on
record, in our view, case for bail is made out.
2) In Rajib Dey v. The State of West Bengal, decided on 20 Jan 2023, SLP (Crl)
8895-2022, Hon’ble Supreme Court holds,
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[2]. The petitioner seeks his enlargement on regular bail in a Case
arising out of FIR No.341/2021,
dated 06.12.2021, registered at Tahirpur Police Station, District
Nadia, West Bengal, under Section 21(c) of the NDPS Act and
Section 25/27 of the Arms Act. As per the allegation, 30 bottles of
phensedyl syrup containing codeine phosphate were recovered
from the petitioner. There are no criminal antecedents of the
petitioner. The petitioner is in custody since 18.02.2022. The
charges have already been framed and the trial has commenced but
conclusion thereof will take some time.
[3]. Keeping in view all the attending circumstances but without
expressing any views on the merits of the case, the petitioner is
directed to be released on bail subject to his furnishing bail bonds
to the satisfaction of the Trial Court.
3) In Ismaul Sk v. State of West Bengal, decided on 02 Jan 2024,
MANU/SCOR/00506/2024, Hon’ble Supreme Court holds,
The appellant has undergone incarceration for a period of 1 year
and 10 months. The allegation is that 50 bottles containing
Phensedyl cough syrup were recovered from the appellant.
Another issue is of violation of Section 52A of the Narcotic Drugs
and Psychotropic Substances Act, 1985.
Considering the facts of the case and particularly in view of the
fact that the trial has hardly made any progress in the sense that
only one prosecution witness has been partly examined, the
appellant deserves to be enlarged on bail.
Criminal Appeal @ SLP(Criminal)No.14827/2023 Page 1 of 4 For
that purpose, the appellant shall be produced before the Trial Court
within a period of one week from today. The Trial Court shall
enlarge the appellant on bail on appropriate terms and conditions,
including the condition of regularly attending the Trial Court and
cooperating with the Trial Court for early disposal of the case. The
appeal is accordingly
allowed.
4) In Najrul Islam @ Najbul Hoque vs The State of West Bengal, decided on 03
Jan 2024, MANU/SCOR/00264/2024, Hon’ble Supreme Court holds,
The counsel for the petitioner would submit that the petitioner was
arrested on 19.11.2022 in connection with the case arising out of
FIR No.477/2022 and the High Court rejected bail for the
petitioner under the impugned order on 06.07.2023. It is also
pointed out that the 100 bottles of Phensedyt Syrup containing
codiene phosphate were seized in the case. Mr. Gupta would then
advert to various bail orders passed by this Court in cases with
similar kind of contraband.
Admittedly, charges are yet to be framed and the trial is unlikely to
conclude in near future. The State counsel by way of explanation
submits that charges in this case could not be framed as one of the
accused is absconding.
Having regard to the circumstances here and the remote possibility
of the trial to conclude in near future and the incarceration of the
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petitioner for over a year in connection with the contraband in
question, we deem it appropriate to grant bail to the petitioner.
Accordingly, the petitioner (Najrul Islam Najbul Hoque) be
released on bail. Appropriate terms and conditions for bail is to be
imposed by the learned Trial Court
5) In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal, decided
on 03 Jan 2024, MANU/SCOR/00327/2024, Hon’ble Supreme Court holds,
[2]. The allegations are that the petitioner along with other
accused persons were found in possession of two plastic bags a
cough containing a total of 10,000 ml. of codeine phosphate
narcotic substance. It further syrup, which is notified as a narcotic
substance. It further appears from the contents of the FIR that the
petitioner, who was found in conscious possession of two white
plastic containers both of which contained 5,000 ml. each of the
said liquid. He was apprehended at the spot and is in custody since
then.
[3]. The respondent State of West Bengal has filed its counter
affidavit, in which it is candidly acknowledged that though the
investigation is complete and the chargesheet has been filed,
however, the charges are yet to be framed. The prosecution
proposes to examine 10 witnesses. The conclusion of trial will,
thus, take considerable time. The petitioner is in custody for the
last more than one and a half years.. He does not have any criminal
antecedents.
[4]. According to learned counsel appearing on behalf of
respondent State, the narcotic substance allegedly recovered from
the petitioner’s possession is of commercial quantity’ and, as such,
the rigors of Section 37 of the NDPS Act are attracted. We have
considered the submission.
[5]. Taking into consideration the period already undergone by
the petitioner in custody; the fact that he does not have any
criminal antecedents and also keeping in view that the prolonged
incarceration will not serve the cause of substantial justice,
however, without expressing any views on the merits of the case,
we are inclined to release the petitioner on bail at this state. The
petitioner is, accordingly, directed to be released on bail subject to
the following directions: …
6) In Subhashri Das @Rana @ Subhoshree v. The State of West Bengal, decided
on 05 Jan 2024, MANU/SCOR/02185/2024, Hon’ble Supreme Court held as
under:-
The accusation is that the petitioner was found in possession of 60
bottles of Phensedyl Syrup (100 ml in each bottle). The charge
sheet was filed on 31.8.2022. The petitioner has been in custody
since 12.3.2022. The application for bail filed by the petitioner was
rejected by the High Court and hence this special leave petition.
Heard learned counsel for the petitioner and also counsel for the
Respondent-State. Taking note of the nature of the accusation and
the fact that the petitioner is in custody since 12.3.2022, we are of
the considered view that the petitioner can be ordered to released
on bail subject to the terms and conditions to be imposed by the6
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Trial Court. Ordered accordingly. The petitioner shall be produced
before the Trial Court forthwith for compliance with the order.”
7) In Indrajit Mondal @ Piglu v. The State of West Bengal, SLP (Crl.) No(s).
8512-2023, decided on 25 Jan 2024, Hon’ble Supreme Court holds,
[1]. The petitioner is in custody since 17 August 2021.
[2]. FIR No 355 of 2021 was registered at PS Murshidabad for
offences punishable
under Sections 21(c) and 29 of the Narcotic Durgs and
Psychotropic Substances Act 1985. The allegation is that the
petitioner was found to be in possession of ten litres of codeine
phosphate.
[3]. We have heard Mr Praveen Swarup, counsel appearing on
behalf of the petitioner, and Mr Shreyas Awasthi, counsel
appearing on behalf of the State of West Bengal.
[4]. Counsel appearing on behalf of the State of West Bengal states
that the charges have been framed on 4 January 2024 and the
prosecution proposes to examine seventeen witnesses.
[5]. The petitioner is in custody for over two years and five
months. There is no prospect of the trial concluding on an early
date. Hence, we are of the view that it would be appropriate and
proper to release the petitioner on bail subject to such terms and
conditions as may be imposed by the Special Court under NDPS
Act-cum-ADJ, Second Court Berhampore, Murshidabad in
connection with NDPS Case No 166 of 2021. Ordered accordingly.
8) In Saiful Islam v. The State of West Bengal, decided on 14 Feb 2024,
MANU/SCOR/60244/2024, Hon’ble Supreme Court holds,
[3]. The counsel would point out that the petitioner is in custody
for over two years since he was arrested on 08.01.2022. It is then
submitted SLP (CRIMINAL) Diary No(s).39202/2023 that the
contraband in question is 112 bottles of Phensedyl Syrup
containing codeine phosphate.
[4]. Since bail in similar circumstances was allowed by this Court,
following the orders enclosed to the petitioner, we deem it
appropriate to grant bail to the petitioner. Accordingly the
petitioner (Saiful Islam) be released on bail in connection with the
case arising out of FIR No.16/2022. Appropriate bail condition be
imposed by the learned Trial Court.
9) In Debrata Mondal vs State of West Bengal, Decided on 15 Feb 2024,
MANU/SCOR/23288/2024, Hon’ble Supreme Court held as under:-
[3]. Going by the allegations, 290 bottles of phensedyl
syrup was recovered from the possession of the petitioner
and the co-accused. The fact is that the co-accused was
enlarged on bail by the High Court. The petitioner is in
custody since 10.01.2022. Taking into account the aforesaid
aspects, we are of the considered view that the petitioner can
be enlarged on bail, subject to the terms and conditions to be
imposed by the Trial Court. Ordered accordingly. In that7
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regard, the petitioner shall be produced before the Trial
Court, forthwith.”
10) In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal,
MANU/SCOR/29168/2024, Decided on 26 Feb 2024, the Hon’ble Supreme
Court holds,
Heard learned counsel for the appellant in support of the petition
and learned counsel for the State and perused the material on
record. The appellant is in custody for approximately 1 year 4
months.
During the course of submission it was pointed out by the learned
counsel for the appellant that in another case the appellant has been
granted bail and therefore, similar relief may be granted by this
Court in this case.
The said submission is in response to the submission made by the
learned counsel for the respondent-State that this is not the only
case in which the appellant has been apprehended. She further
submitted that a huge quantity of codeine cough syrup was
recovered from the premises (Godown) which has been tenanted
by the appellant herein. Considering the facts on record, in our
view, the case for bail is made out.
11) In SK. Nasiruddin @ Nasirddin SK. Vs State of West Bengal, decided on
06 Mar 2024, MANU/SCOR/34261/2024, the Hon’ble Supreme Court holds,
[4]. The appellant is charged for the offence(s) punishable under
Section 21(C)/29 of the NDPS Act, 1985 and seeks his
enlargement on regular bail in a Case arising out of FIR No. 219 of
2022 dated 12.04.2022, registered at P.S. Raghunathganj, Jangipur
Police District, Murshidabad, West Bengal.
[5]. We note the submission of the learned counsel for the
appellant that the appellant was arrested on 12.04.2022 and since
then he has been in custody as an under trial prisoner. Even though
charges have been framed, trial is yet to begin but there is no
likelihood of the trial being taken up and completed within a short
period of time. It is also submitted that the appellant does not have
any criminal antecedents. It is also brought to our notice that the
High Court while rejecting the regular bail application had
erroneously recorded that 50 ltrs. of codeine phosphate was
recovered from the appellant. This is perhaps a mistake as recovery
of only 5 ltrs of codeine phosphate which was mentioned in the
FIR.
[6]. Keeping in view all the attending circumstances but without
expressing any views on the merits of the case, we are inclined to
grant bail.
12) In Indadul Shah vs The State of West Bengal, decided on 20 Mar 2024,
MANU/SCOR/42687/2024, Hon’ble Supreme Court holds,
The petitioner was arrested on 27.10.2022 in furtherance of an FIR
dated 27.10.2022 for offences punishable under Section 21(c)/29
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of the Narcotic Drugs and Psychotropic Substances Act, 1985. He
was found in possession of 70 bottles of 100 ml. Phensedyl.
We notice from the record that charge-sheet has already been filed
on 20.04.2023. There is no likelihood of the trial being taken up
and completed within a short period of time. There are no criminal
antecedents involving the petitioner herein.
Considering the facts and circumstances, we are inclined to grant
bail. The petitioner is directed to be released on bail in connection
with FIR No. 334 of 2022 registered at Police Station Jalangi
District Murshidabad subject to such terms and conditions as may
be imposed by the Trial Court.
13) In Hanef Kharsani @ Hanef Sheikh vs Union of India, decided on 08 Apr
2024, MANU/SCOR/49775/2024 the Hon’ble Supreme Court holds,
The appellant Hanef Kharsani @ Hanef Sheikh has been booked
for the crime registered pursuant to NCB Crime No.
07/NCB/KOL/2023 dated 09.02.2023 in respect of offence
punishable under Sections 8 (c) and 21 (c) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short, the NDPS Act‘).
The appellant preferred an application under Section 439 of the
Code of Criminal Procedure, 1973 before the High Court seeking
bail in the instant crime. The High Court noted that the narcotic
substance i.e. 415 bottles of Phensedyl Syrup containing codeine
phosphate which is above commercial quantity was recovered from
the appellant and in view of the statutory restrictions under Section
37 of the NDPS Act, the application seeking bail was rejected.
It is submitted by the learned counsel for the appellant that the
appellant was not in conscious possession of the offending material
and that the prosecution has not complied with the requirements of
the NDPS Act. Further, the appellant is in jail for approximately
one year and two months and the trial is not likely to be completed
in the near future. Moreover, in certain identical cases, the accused
have been granted relief of bail by this Court. Therefore, the
appellant may also be granted bail during the pendency of the trial.
Learned counsel for the appellant also brought to our notice the
fact that on completion of the investigation, the charge sheet has
been filed and there are seven witnesses but the trial has not yet
commenced.
However, learned ASG appearing for the respondent submitted
that this is not a fit case for grant of bail inasmuch as the quantity
which has been recovered is over and above the commercial
quantity and it has become a regular feature in that part of the
country where enormous amounts of Phensedyl Syrup containing
codeine phosphate is being recovered and, therefore, the
application seeking bail may be dismissed.
Considering the facts on record, in our view, the case for bail is
made out.”
14) In Nijam Sheikh @ Md. Nijam SK @ MD Nizam SK v. The State of West
Bengal, decided on 15.04.2024, MANU/SCOR/52031/2024, the Hon’ble
Supreme Court holds,
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The appellant Nizam Sheikh Md. Nijam Sk Md. Nizam Sk has
been booked for the crime registered pursuant to FIR No.90/22
dated 19.03.2022 lodged with Police Station Lalgola, District
Murshidabad, under Section 21(C)/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act‘ for short). The
High Court noted that the narcotic substance i.e. 55 bottles of
phensedyl syrup containing codeine phosphate which is above
commercial quantity was recovered from the appellant and in view
of the statutory restrictions under Section 37 of the NDPS Act, the
application seeking bail was rejected.
Heard learned counsel for the appellant and counsel for the
respondent-State.
It is submitted by the learned counsel for the appellant that the
appellant was not in conscious possession of the offending material
and that the prosecution has not complied with the requirements of
Section 52-A of the NDPS Act. Further, the appellant is in jail
since 28.03.2022 and the trial is not likely to be completed in the
near future. Therefore, the appellant may be granted bail during the
pendency of the trial.
Learned counsel for the Respondent-State submitted that recording
of evidence is to be commenced from tomorrow (i.e. 16.04.2024)
and there are only eight (08) witnesses as per the charge sheet and
the trial would be completed expeditiously. Therefore, at this stage,
the appellant need not be released on bail.
It was further submitted that the other seven (07) co-accused who
were granted bail, are not cooperating with the trial of the case and
therefore, this is not a fit case where bail may be granted to the
appellant herein.
Considering the facts on record, in our view, the case for bail is
made out.”
15) In Mohidul Sarkar v. The State of West Bengal, decided on 19 Apr 2024, SLP
(Crl) 15668- 2023, Hon’ble Supreme Court holds,
[2]. Notice in this case was issued on 29.11.2023 with the
following order:
“xx xx xx The counsel submits that the petitioner is in custody
since 14.09.2022 for about 14 months. He then points out that the
contraband in question is Phensedyl Syrup containing codeine
phosphate and around 320 bottles of the syrup was recovered. The
petitioner’s counsel submits that notice in similar matter was
issued on 13.10.2023 in the SLP (Crl.) Diary No.39063/2023. Issue
notice, returnable in three weeks. Dasti notice on the Standing
Counsel for the State, in addition.”
[3]. Having considered the duration of custody and the nature of
Contraband i.e., 320 bottles of Phensedyl Syrup seized from the
petitioner, we deem it appropriate to grant bail to the petitioner –
Mohidul Sarkar in connection with FIR No. 224 of 2022 registered
at P.S. Sagarpara. The similar orders passed by this Court in SLP
(Criminal) No. 12911 of 2023 on 22.01.2024 and Criminal Appeal
No. 409 of 2024 on 25.01.2024 are also noted. Appropriate bail
conditions be imposed by the learned Special Court, Murshidabad.
It is ordered accordingly.
16) In Ripon Seikh v. State of West Bengal, decided on 19 Apr 2024,
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MANU/SCOR/56447/2024, Hon’ble Supreme Court holds,
[4]. On the other hand, having regard to the duration of custody
since the petitioners were arrested on 23.11.2022 and the nature of
Contraband i.e., 73 bottles of Phensedyl Syrup containing Codeine
Phosphate recovered from the joint possession of the four accused,
we deem it appropriate to grant bail to the petitioners Ripon Seikh,
Sahin Seikh and Babu Sk, in connection with FIR No. 310 of 2022
registered at P.S. Sagarparara, District Murshidabad. Appropriate
bail conditions be imposed by the learned Special Court,
Murshidabad. It is ordered accordingly.
17) In Saniya Bibi @ Soniya Bibi vs The State of West Bengal, decided on 26
Apr 2024, MANU/SCOR/56979/2024, Hon’ble Supreme Court holds,
[3]. Mr. Dibyadyuti Banerjee for the petitioner points out that
the Contraband in question is 105 bottles of Phensedyl Syrup and
the petitioner, who is a lady, is in custody for about 2 years 3
months since he was arrested on 24.01.2022. That apart, the next
date of trial is fixed on 23.07.2024 and although 16 witnesses are
cited, not a single witness is examined so far.
[4]. Notice in this case was issued on 04.03.2024 and today the
State counsel prays for time to file counter affidavit.
[5]. Having considered the circumstances and more particularly
the duration of custody, the nature of the Contraband and the
unlikely possibility of the trial getting concluded on an early date,
we deem it appropriate to grant bail to the petitioner Saniya Bibi@
Soniya Bibi in connection with the FIR No. 30 of 2022 dated
24.01.2022 registered with P.S. Jalangi, District Murshidabad. It is
ordered accordingly. Appropriate bail conditions be imposed by
the learned trial court.
18) In Saddam Hossain vs State of West Bengal, decided on 03 May 2024,
MANU/SCOR/62782/2024, Hon’ble Supreme Court holds,
[2]. Notice in this case was issued on 08.12.2023, with the
towing order:-
“…The counsel refers to the FIR 37/2023 to point out that
72 bottles of 100 ml Phensedyl Syrup were seized and since
each 5 ml contains 10 mg of codiene phosphate, the total
quantity of codeine phosphate in the 72 bottles would be
around 14.4 grams. Such quantity is below the stipulated
commercial quantity in the Schedule to the NDPS Act.
It is further pointed out that the petitioner has been in
custody for 10 months and charges are yet to be framed in
the matter.
Issue notice on the plea for bail, returnable in four weeks.
Dasti notice on the standing Counsel for the State, in
addition.”
[3]. Learned counsel for the state in his turn submits that
evidence of witnesses is scheduled to commence in July
2024.
[5]. Looking at the above facts and more particularly the nature
of the contraband and the long custody of the petitioner since
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23.01.2023, we deem it appropriate to grant bail to the petitioner.
Accordingly the petitioner (Saddam Hossain) be released on bail in
connection with the case arising out of FIR No.37/2023 registered
at P.S. Raninagar, District Murshidabad. Appropriate bail
condition be imposed by the learned Trial Court.”
19) Mithun SK v The State of West Bengal, decided on 17 May 2024,
MANU/SCOR/71191/2024, the Hon’ble Supreme Court held as under:-
The appellants have been booked for the crime registered pursuant
to FIR No.158 of 2022 dated 26.07.2022 lodged with Police
Station Sagarpara, District Murshidabad, under Section 21(C)/29
of the NDPS Act, 1985. The High Court noted that the narcotic
substance i.e. 388 bottles of phensedyl syrup containing codeine
phosphate which is above commercial quantity was recovered from
the appellants and in view of the statutory restrictions under
Section 37 of the NDPS Act, the application seeking bail was
rejected.
Heard learned counsel for the parties.
We have perused the counter affidavit filed by the respondent-
State.
It is submitted by the learned counsel for the appellant(s) that the
appellants were not in conscious possession of the offending
material and that the prosecution has not complied with the
requirements of Section 52-A of the Act, 1985. Further, the
appellants are in jail since 26 July 2022. Therefore, the appellants
may be granted bail during the pendency of the trial.
However, learned counsel for the respondent submitted that the
recovery has been made from the appellants herein.
Considering the above facts on record, in our view, the case for
bail is made out.”
20) In Bijon SK @ Golam Murselim v. The State of West Bengal, decided on 08
Jul 2024, SLP (Crl) 6046-2024, a three Bench of Supreme Court holds,[1]. The petitioner has been denied bail in connection with FIR
No 252 of 2022 dated 16 November 2022 lodged at PS
Doulatabad, District Murshidabad under Sections 21(c), 22 (c) and
29 of the Narcotic Drugs and Psychotropic Substances Act 1985.
The allegation is that the petitioner was the owner of a truck which
was alleged to be used for the transport of 9075 bottles of
Phensedyl.
[2]. The petitioner is in custody since 5 August 2023. Charges
have been framed. The prosecution proposes to examine 23
witnesses.
[3]. Considering the above facts and circumstances, an early
conclusion of the trial does not seem possible. Conscious as the
Court is of the provisions of Section 37 of the NDPS Act, we are
of the view that the petitioner should be released on bail, subject to
such terms and conditions as may be imposed by the Special Court
under NDPS Act, Berhampore, Murshidabad. Accordingly, the
petitioner is directed to be released on bail, subject to such terms
and conditions as may be imposed by the Special Court under
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NDPS Act, Berhampore, Murshidabad in NDPS Case No 226 of
2022.”
21) In Alamgir Sk. @ Alam Sk. @ Alomgir Sk. v. State of West Bengal, decided
on 12 Aug 2024, SLP (Crl.) 15176-2023, Hon’ble Supreme Court holds,
The petitioner is an accused for the offences punishable under
Sections 21(c)/29 of the Narcotic Drugs and Psychotropic
Substances Act. It is alleged that 99 bottles of phensedyl syrup
were recovered from him. His bail application was dismissed by
the High Court. He has already undergone about 1 year and 10
months in jail.
Heard learned counsel for the petitioner and the State.
Under these circumstances of this case, we are of the opinion that a
case of bail is made out for the petitioner.
22) In Dhananjoy Mondal v. The State of West Bengal, decided on 03 Sep
2024, SLP (Crl.) 6526-2024,
[2]. The petitioner was arrested on 15.12.2022 and by now, he has
been in custody for 1 year 9 months. The Contraband in question is
100 bottles of Phensedyl Syrup.
[4]. Having considered the above and the fact that the petitioner
was granted bail in all the three cases mentioned in paragraph 7 of
the State’s counter affidavit and looking at the nature of the
Contraband in the present case, we deem it appropriate to grant
bail to the petitioner – Dhananjoy Mondal. It is ordered
accordingly. Appropriate bail conditions be imposed by the learned
trial court. The petitioner is entitled to bail on prolonged custody
because the Hon’ble Supreme Court has granted bail on prolonged
custody in the following cases:
23) In Yusuf SK v. The State of West Bengal, decided on 12-Nov-2024, SLP (Crl)
5924-2024, Hon’ble Supreme Court holds,[1]. Against rejec on of regular bail by the High Court and to seek bail,
the present Special Leave Pe on has been filed. The pe oner is in
custody w.e.f. 18.12.2022 in connec on with FIR No. 462/2022 under
Sec ons 21(C)/29 of the Narco c Drugs and Psychotropic Substances
Act, 1985 and Sec on 27(a) of the Drugs and Cosme cs Act, 1940
registered with Police Sta on Baishnabnagar, District Malda, West
Bengal.
[2]. Having considered the submissions made by learned counsel for the
par es, looking to the period of incarcera on suffered by the pe oner
in a case of recovery of 295 bo<les of phensedyl syrup, we deem it
appropriate to release the pe oner on regular bail. Accordingly, the
pe oner is directed to be released on bail on furnishing the suitable
bail bonds and sure es and on such other terms and condi ons as may
be deemed fit by the trial court.
16. 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)
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(b)(ii) of the NDPS Acti.
17. 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.
[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.
18. Given the above, the petitioner’s pretrial custody is more than some of the judicial
precedents mentioned above; the petitioner is entitled to bail under Article 14 of the
Constitution of India.
19. 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
further pre-trial incarceration at this stage.
20. 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.
21. 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.
22. 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)
23. This order is subject to the petitioner’s complying with the following terms.
24. The petitioner shall abide by all statutory bond conditions and appear before the
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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.
25. Given the background of allegations against the petitioner, it becomes paramount
to protect the drug detection squad, their family members, as well as the members of
society, 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 firearm(s). [This restriction is being imposed
based on the preponderance of evidence of probability and not of evidence of certainty,
i.e., beyond 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 from release from
prison and inform the Investigator about the compliance. However, subject to the Indian
Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of
acquittal in this case, provided otherwise permissible in 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.
26. 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.”
27. 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.”
28. This bail is conditional, and the foundational condition is that if the petitioner
indulges in any non-bailable offense, the State may file an application for cancellation of
this bail before the Sessions Court, which shall be at liberty to cancel this bail.
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29. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
30. 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.
31. Petition allowed in terms mentioned above. All pending applications, if any, stand
disposed of.
(ANOOP CHITKARA)
JUDGE
30.01., 2025
smriti
Whether speaking/reasoned: Yes
Whether reportable: Yes.
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