Vivek Singh Thakur, J (oral)

1. Petitioner has preferred this petition, under Section 439 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), seeking regular bail in case Crime No. 66 of 2019, dated 7.11.2019 registered under Sections 8, 20, 25, 28, 29 and 60 of Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as ‘NDPS Act’) in Police Station Narcotics Control Bureau,Chandigarh, District Chandigarh.

2. Prosecution case, as evident from copy of complaint filed with petition, is that on 7.11.2019, a specific information was received by Rajan Singh Bisht, Surveillance Assistant NCB through reliable source with respect to trafficking of charas and opium, which was reduced into writing by him and put up before Superintendent NCB Chandigarh at 01.05 PM, whereupon Superintendent NCB had instructed to constitute a team to take further necessary action as per law.

3. As per information, two persons, namely Kuldeep and Hardeep, both residents of Mani Majra Chandigarh, were engaged in charas and opium trafficking and they had been transporting a huge consignment of charas and opium on that day, received from Dev Raj, resident of Banjar to deliver it to Karamvir @ Landa resident of Pinjore by using Mahindra Pickup vehicle bearing No. HP-12J-4403 and they were likely to reach at Toll Barrier Baddi between 4 PM to 5 PM.

4. It is the case of prosecution that on 7.11.2019 at about 2.45 PM, the team constituted by Superintendent NCB reached at Toll Barrier Baddi Himachal Pradesh and contacted Police Station Baddi with request to provide two independent witnesses. Further that despite best of efforts made by the team, no one from the local public had agreed to witness the search and seizure proceedings, but, at about 3.45 PM, two police officials namely Akram Khan and Shiv Kumar Constables, posted in Police Station Baddi, had approached the scene. NCB Team was introduced to both of them by Investigating Officer and they were made aware of secret information. Both of them were requested, in writing, to witness the search and seizure proceedings for which they agreed.

5. According to prosecution, at about 4.45 PM Mahindra Pickup, matching with secret information, reached the Toll Barrier which was stopped and person sitting at driver’s seat, on inquiry had introduced him as Kuldeep son of Gafur, resident of Mani Majra and person sitting besides him had disclosed his name as Hardeep Kumar (petitioner) son of Harish Kumar. They were taken to nearby barrier of Excise and Taxation Office and Investigating Officer had introduced himself and his team members including independent witnesses to them by showing Identity Cards and also about the secret information received by him with respect to trafficking of charas and opium by both of them and therefore, expressed the intention to search the vehicle Mahindra Pickup van.

6. It is further case of prosecution that during search of pickup van, at first instance, nothing was recovered. However, on stern inquiry, both of them had confessed that they had concealed the charas and opium in a special cavity made at backside of pickup, below the registration number plate whereupon pickup van was again searched and both of them had removed the number plate and had taken out 10 silver colored packets and informed that one of those packets was containing opium, while other nine were containing charas.

7. Recovered contraband was weighed and seized by following the procedure provided under NDPS Act and total recovered charas was found 8 Kg. 750 grams and recovered opium was found 1.020 Kg.

8. On 8.11.2019, Karamvir was served with summons under Section 67 of NDPS Act and his house as well as his vehicle Car No. CH-01BU-2516 were searched. Besides other articles, three mobile phones, a silver small weighing machine and an electronic compact scale were also recovered and seized from his residence. During investigation, on 8.11.2019 voluntary statements under Section 67 of NDPS Act of all, i.e. Kuldeep (co- accused), Hardeep (petitioner) and Karamvir, were recorded by Investigating Officer, after explaining about their right that they were not bound to give any statement and they were at liberty to remain silent and any statement, if given by them, could be used against them or against anybody-else as evidence in Court.

9. According to prosecution, in their statements, all of them had accepted their guilt and role in procurement and trafficking the seized contraband. Based on voluntary statements, all of them were arrested on 8.11.2019.

10. It is case of prosecution that during investigation, call detail reports (CDRs) of mobile phones of trio were also obtained and it was found that mobile numbers 78075-30188, 62303- 49337, 88940-41593 were being controlled by Karamvir, whereas mobile numbers 86278-86848 and 86278-67931 were being controlled by co-accused Kuldeep and Dev Raj respectively. Analysis of CDRs of these numbers had established the link between Karamvir (receiver), carrier Kuldeep and Hardeep (petitioner), and supplier Dev Raj.

11. Petitioner had approached the Special Judge, Nalagarh, by filing Bail Application No.151-NL/22 of 2020 on 07.07.2020, which was dismissed on 17.07.2020.

12. Learned counsel for the petitioner has submitted that after dismissal of Bail Application on 17.07.2020, but during pendency of present application, the Supreme Court, vide order dated 13.7.2023, passed in Special Leave to Appeal (Crl.) No.4169 of 2023, titled as Rabi Prakash versus The State of Odisha, has enlarged an accused on bail, in identical circumstances, having been found in possession of 247 kgs Ganja from the Truck in which he was travelling, on the ground of delay in trial, and, therefore, irrespective of dismissal of earlier Bail Application, the petitioner is entitled to file present application for enlarging him on bail.

13. It has been further stated that co-accused Karamvir, Dev Raj and Kuldeep have been enlarged on bail, vide orders dated 9.12.2022, 26.5.2023 and 11.08.2023 passed in their respective Bail Applications No.1477 of 2022, 716 of 2023 and 779 of 2023 and, therefore, also petitioner is entitled for bail.

14. It has further been submitted on behalf of the petitioner that till date no witness has been examined and case is pending at the stage of framing of charge and that petitioner is behind the bars for more than 4 years, whereas in case of Rabi Prakash, one witness had already been examined and accused was in custody for more than 3½ years.

15. Learned counsel for the petitioner, to substantiate claim of the petitioner for enlarging him on bail, has also referred order of the Supreme Court in Binod Kumar @ Binod Kumar Bhagat versus State of Bihar, (2018) 14 SCC 199 [LQ/SC/2017/1156] .

16. So far as enlargement of Karamvir and Dev Raj is concerned, those co-accused have been implicated on the basis of disclosure statement of co-accused and Call Detail Records and, therefore, they were enlarged on bail on different grounds, particularly, on account of pronouncement of Supreme Court in Special Leave to Appeal (Crl.) No.242 of 2022, tilted as State by (NCB) Bengaluru v. Pallulabid Ahamad Arimutta & another, whereas petitioner has been arrested for recovery of contraband from vehicle occupied by him. Therefore, circumstances of the present petitioner are not identical to Karamvir and Dev Raj.

17. In the facts and circumstances and reasons assigned for granting bail, order passed by the Supreme Court in Binod Kumar’s case is also not applicable in present case.

18. However, facts in Rabi Prakash’s case appear to be identical to present case, wherein it has been recorded and ordered as under:

“2. The prosecution case appears to be that the police party while on patrolling duty on 02.10.2019 at about

12.30 p.m. on Nandapur-Semiliguda road MDR-55, spotted one full body twelve wheeler Truck (Eicher) bearing No.EB-13-BD-5753 coming from Nandapur side at a high speed and accordingly they chased and detained the truck at Bodenga Chhak and found three persons boarded in the said truck including the driver. Eventually,

247 kg. Ganja was recovered from the truck. The petitioner was one of the occupants of the truck and was arrested at the spot. He has been in custody for more than three and a half years. There are no criminal antecedents against the petitioner.

3. We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. The conclusion of trial will, thus, take some more time.

4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. 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.

5. However, we find some merit in the contention of learned counsel for the respondent – State that the petitioner being not a resident of the State of Orissa, some stringent conditions are required to be imposed upon him.

6. Consequently, while directing that the petitioner shall be released on bail on his furnishing bail bonds to the satisfaction of the Trial Court, it is directed that he shall be required to produce two local sureties before the Trial Court. The petitioner shall also appear before the Trial Court on every date of hearing. In case he absents himself, it shall be taken as a misuse of concession of bail granted to him today by this Court. Ordered accordingly.”

19. Mr. Ashwani Pathak, learned Senior Advocate, has submitted that quantity of contraband recovered in present case is of commercial quantity and, thus, petitioner, who is involved in commission of heinous crime which is affecting not only the individuals and their families, but also the society at large, is not entitled for bail. Whereas, learned counsel for the petitioner has submitted that in view of the order of the Supreme Court in Rabi Prakash’s case, petitioner is entitled for bail.

20. Learned counsel for the petitioner has further submitted that the petitioner is ready to furnish personal bond and surety bonds of local person as well of a relative and also undertakes to abide by any condition, which may be imposed by the Court, in case of his release on bail, to assure his presence during trial.

21. Taking into consideration the entire facts and circumstances, but, without commenting on merits of the rival contentions of the parties, and taking into account factors and parameters, as propounded by the Courts, including Supreme Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case, at this stage.

22. Accordingly, the petition is allowed and the petitioner is ordered to be released on bail, in present case, on his furnishing personal bond in the sum of `2,00,000/- with two sureties, one of which shall local surety and the other shall of a relative, as undertaken by the petitioner, each in the like amount to the satisfaction of Trial Court, upon such further conditions as may be deemed fit and proper by the Trial Court, including the conditions enumerated hereinafter, so as to assure presence of petitioners/accused at the time of trial:

"(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required, as per law;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) the petitioner shall not leave India without permission of the Court."

23. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

24. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

25. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

26. Observations made hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.

27. Petition stands disposed of in the aforesaid terms.