CRM-M-3454-2011(O&M) [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-3454-2011(O&M) Date of decision:17.08.2011. Balihar Singh ...Petitioner Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Satnam Sing Gill, Advocate, for the petitioners. Mr. A.S.Rai, DAG, Punjab. Mr. Shakun Chaudhary, Advocate, for the complainant. ***** RAKESH KUMAR JAIN, J. (ORAL) This is a petition for regular bail pending trial in the case registered vide FIR No.27 dated 11.03.2010, under Sections 15/25/61/85 of the NDPS Act at Police Station Sadar Nabha, District Patiala. The allegation against the petitioner is that he was the pillion rider from whom 70 Kgs. of poppy husk has been recovered. The petitioner applied for bail before the Court below which was dismissed on 03.07.2010 on the ground that the recovery falls within the definition of commercial quantity and in view of the rigour of Section 37 of the Act, the bail cannot be granted. In the present case, while issuing notice of motion, the following observations were made on 16.02.2011: - “Learned counsel for the petitioner submits that the petitioner earlier filed CRM NO.M-20607-2010 for grant of regular bail which was dismissed on CRM-M-3454-2011(O&M) [ 2 ] :::::::: 22.09.2010. It is, however, submitted that trial Court in the case has not made any substantial progress and only two PWs have been examined; besides, the representation given by Gram Panchayat and residents of vilalge Kahangarh Gharactcho, Police Station Patran, District Patiala dated 13.03.2010 (Annexure P-1) was placed on record. Notice of motion for 06.04.2011.” Thereafter the case was adjourned three times. On 08.07.2011, on the statement made by the learned State Counsel that out of 11 witnesses only 3 have been examined, the case was adjourned to 09.08.2011. Learned counsel for the petitioner submits that on 09.08.2011 again the case was adjourned for recording of the evidence of the prosecution. He has produced on record copies of the orders dated 22.07.2011 & 12.08.2011 which read as under: - “Present: Addl. PP for the State. Accused in custody with counsel Sh. Rajan Verma, Adv. HC Harmesh Kumar served but he has sent a request for exemption. No other PW is present or served. Case is adjourned to 12.8.2011 for prosecution evidence. PWs be also summoned for that date. Sd/- JSC/22.7.2011.” “Present: Addl. PP for the State. Accused in custody with counsel Sh. Rajan Verma, Adv. No witness on behalf of the prosecution is present. Summons received back un-served. Case is adjourned to 2.9.2011 for prosecution evidence. PWs be summoned for that date. Sd/- JSC/12.08.2011.” He relies upon the orders passed by this Court in CRM-M-25556- CRM-M-3454-2011(O&M) [ 3 ] :::::::: 2010 titled as `Bheem Singh @ Bheema Vs. State of Punjab' decided on 25.10.2010, CRM-M-30836-2010 titled as `Kuldip Singh Vs. State of Punjab' decided on 05.01.2011 and CRM-M-5056-2011 titled as `Shingara Singh Vs. State of Punjab' to contend that if the trial is not making any headway because of the lapse on the part of the prosecution, then the accused cannot be allowed to be incarcerated further. Learned State Counsel, however, submits that earlier the prosecution witnesses could not be examined because being the police officials they were busy in the law and order management during Sangat Darshan of the Chief Minister and on the next date, the Process Server was busy in the Independence Day Parade. He submits that since the Process Server was busy, therefore, he could not serve summons upon the witnesses for their examination. After taking into consideration all the facts and circumstances of this case, the decision of this Court in Shingara Singh's case (supra) and the fact that the petitioner is the first offender and no other case is pending against him, without expressing any opinion on the merits of the case, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds to the satisfaction of the learned Trial Court. August 17, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE