1. This is the second petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR/NCB Crime no. 62 dated 20.09.2021 registered under Sections 8, 18, 28, 29, 60, 62 of the Narcotic Drugs and Psychotropic Substances Act 1985 (in short "NDPS Act") at Police Station NCB, Chandigarh, U.T.

2. Brief facts of the present case that the Union of India through Ajit Pal Singh, Intelligence Officer, Narcotics Control Bureau, Chandigarh Zonal Unit had filed a complaint against the petitioner and co-accused Gurminder Singh under Sections 8 , 18 , 28 , 29 & 62 of the NDPS Act in the Court of Judge, Special Court, under NDPS Act, 1985 , Patiala. As per the allegations in the complaint, secret information was received on 19.09.2021 at around 08:00 PM by Sanjeev Kumar, Intelligence Officer, NCB, which was reduced into writing and the same was to the effect that Gurminder 1 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 2 2023:PHHC:098289 Singh, co-accused of the petitioner was involved in the trafficking of opium and that he would be bringing a consignment of opium in vehicle bearing no.PB-23-T-1041 from Rohtak to Nabha and he would cross the Bhagat Singh Chowk on Narwana-Patran road between 09:00 hours to 10:00 hours on 20.09.2021. Accordingly, a team was constituted and Gurminder Singh along with one Prabhveer Singh, who was travelling in the above mentioned vehicle, were apprehended by the NCB team. It was found that Gurminder Singh was carrying consignment of opium in the vehicle which upon weighing, came to be 2.625 kgs (commercial quantity stipulated for the same starts from 2.5 kgs). On the statement of accused Gurminder Singh to the effect that he had purchased opium from the present petitioner, the present petitioner was implicated as an accused in the present case. In paragraph 28 of the complaint, it has been stated that the petitioner, in pursuance of notice issued under Section 67 of the NDPS Act, had presented himself before Ajit Pal Singh, Intelligence Officer on 21.09.2021 and at that time, the petitioner was carrying a black coloured bag with "TYCOON" written on it and had given Rs.45,000/- which he was carrying in the bag to said Ajit Pal Singh, Intelligence Officer. The disclosure statement of the petitioner was also recorded.

3. Learned counsel for the petitioner has submitted that the petitioner was not named in the secret information and no recovery of any narcotic drugs has been effected from him. It is further submitted that the petitioner has no concern with the vehicle bearing no. PB-23-T-1041 in which the narcotic drugs were allegedly being carried by the co-accused. It is stated that even as per para 28 of the complaint (page 26 of the paper book), the petitioner had presented himself on 21.09.2021 before Ajit Pal Singh, Intelligence Officer and as per the version given in the complaint, he 2 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 3 2023:PHHC:098289 himself had handed over Rs.45,000/- to the said Investigating Officer. It is further stated that there is no evidence to corroborate the fact that the said amount of Rs.45,000/- was drug money. It is submitted that the petitioner has been implicated solely on the basis of disclosure statement made by the co-accused and his own disclosure statement which had been recorded in custody and is thus, inadmissible in evidence. It is further submitted that even after the arrest of the petitioner, no narcotic drugs have been recovered from the petitioner. On the said aspect, learned counsel for the petitioner has relied upon judgment passed by the Hon'ble Supreme Court in case titled as " Tofan Singh Vs. State of Tamil Nadu " reported as 2021(1) RCR (Criminal) 1, order passed by Coordinate Bench of this Court dated 17.06.2020 in CRM-M-12051-2020 titled " Mewa Singh Vs. State of Punjab ", and order of Coordinate Bench dated 16.07.2021 passed in CRM- M-12997-2020 titled as " Daljit Singh Vs. State of Haryana " to contend that in a case where the petitioner is sought to be implicated solely on the basis of disclosure statement of co-accused and no recovery of any narcotic has been effected from the accused even after their arrest, then the petitioner/accused should be granted the benefit of bail. It is contended that the petitioner has been in custody since 21.09.2021 and out of 6 witnesses, 4 witnesses are yet to be examined and thus, the trial is likely to take time. It is further contended that the petitioner is not involved in any other case under the NDPS Act and the previous bail application of the petitioner was dismissed as withdrawn at that stage on 15.11.2022 and even thereafter, sufficient time has lapsed but the trial has not concluded, thus, entitling the petitioner to file present bail application. It is stated that any further incarceration would be violative of the right of the petitioner enshrined under Article 21 of the Constitution of India. Learned counsel for the 3 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 4 2023:PHHC:098289 petitioner has relied upon various orders of the Hon'ble Supreme Court, wherein, solely on the basis of the custody, the concession of bail has been granted. Reliance has also been placed upon an order of the Hon'ble Division Bench of this Court in CRM3773-2019 in CRA-D-198-DB-2017 in case titled as "Bhupender Singh Vs. Narcotic Control Bureau".

4. Learned counsel appearing for the respondent-Union of India on the other hand, has opposed the present petition for regular bail and has submitted that the recovery which has been effected from Gurminder Singh, co-accused is of 2.625 kgs. opium which would fall within the ambit of commercial quantity inasmuch as the commercial quantity stipulated for the same starts from 2.5 kgs. It is submitted that Gurminder Singh from whom the recovery has been effected, has named the present petitioner in his disclosure statement as the person who had supplied the recovered opium to him and had even given the details of his identity and in pursuance of the said disclosure statement, notice under Section 67 of the NDPS Act was issued to the present petitioner and thereafter, the petitioner, on 21.09.2021, had appeared before Ajit Pal Singh, Intelligence Officer and had handed over a bag along with Rs.45,000/- which as per the case of the prosecution, is drug money. It is further submitted that the petitioner is involved in three other cases i.e., case no.68/17 dated 11.11.2017 under Sections 341 , 342 , 323 , 324 , 325 , 307 , 354 , 448 , 34 IPC registered at P.S. Vashishstnagar (Jharkhand), case no.84/18 dated 05.12.2018 under Sections 341 , 342 , 323 , 324 , 379 , 34 IPC registered at PS Vashishtnagar (Jharkhand) and case no.26/20 dated 05.05.2020 under Sections 143 , 341 , 448 , 323 , 504 , 506 , 34 IPC registered at PS Vashishtnagar (Jharkhand) and thus, the petitioner does not deserve the concession of regular bail. Other facts have, however, not been disputed.

5. Learned counsel for the petitioner, in rebuttal, has submitted that as far as the case no.26/20 and case no.84/18 are concerned, the petitioner has already been found innocent and the challan has not been presented against him. With respect to the other case, learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in " Maulana Mohd. Amir Rashadi vs. State of U.P. and another ", reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen while deciding a bail application and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in other cases. The relevant portion of the said judgment is reproduced hereinbelow:-

6. This Court has heard learned counsel for the parties and has perused the paper book.

7. The petitioner was not named in the secret information received nor was apprehended along with the narcotic drugs which were being carried by co-accused Gurminder Singh and Prabhveer Singh in vehicle bearing no. PB-23-T-1041 which, as per the case of the prosecution, was rented by Gurminder Singh from Prabhveer Singh, who was driving the same. The petitioner has been implicated in the present case on the basis of disclosure statement made by Gurminder Singh to the effect that it was the petitioner, who had supplied the recovered opium to Gurminder Singh although even after the arrest of the present petitioner, no recovery of any 5 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 6 2023:PHHC:098289 narcotic drug has been effected from him and the primary piece of evidence against the petitioner is the disclosure statement of Gurminder Singh as well as his own disclosure statement made while in custody.

8. The Hon'ble Supreme Court in Tofan Singh 's case (supra), had observed as under:-

9. A coordinate Bench of this Court Mewa Singh 's case (supra), had passed the following order-

6. I have considered rival submissions addressed before this Court.

7. It is not disputed that the petitioner was never apprehended at the spot and that the only evidence against him is in the shape of disclosure statement, the admissibility and veracity of which would be tested during the course of trial. As regards the other three cases which are stated to be pending against the petitioner, the learned counsel for the petitioner has submitted that even in the said cases he has been falsely implicated and was never arrested at the spot and has been granted anticipatory bail in all three cases.

8. Having regard to the facts and circumstances of the case and that it is a case where the petitioner has been nominated solely on the basis of disclosure statement, the petition is accepted and it is ordered that the petitioner in the event of his arrest shall be released on bail subject to his furnishing personal bonds and surety bonds to the satisfaction of Arresting/Investigating Officer. However, the petitioner shall join the investigation as and when called upon to do so and cooperate with the Arresting/Investigating Officer and shall also abide by the conditions as provided under Section 438 (2) Cr.P.C.

9. It is however clarified that in case the petitioner does not join investigation, it shall be open to the investigating agency/prosecution to move for cancellation of his bail."

10. Another coordinate Bench of this Court in Daljit Singh 's case (supra) judgment is reproduced hereinbelow:-

11. A perusal of the above said judgments, more so the judgment of Hon'ble Supreme Court in Tofan Singh 's case (supra) would show that it was held that a confessional statement made before an officer designated under Section 42 or Section 53 of the Act, if made the basis to convict a person under the NDPS Act , without any safeguards, would be an infringement of the constitutional guarantee contained in Articles 14 , 20(3) and 21 of the Constitution of India. A perusal of paragraph 28 of the complaint would show that it was the petitioner who had presented himself before the Intelligence Officer on 21.09.2021 and had handed over Rs.45,000/- to Ajit Pal Singh, Intelligence Officer which, as per the case of 9 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 10 2023:PHHC:098289 the prosecution, is drug money. It is the case of the petitioner that there is no evidence to show that the said money was drug money and mere recovery of money cannot be made the basis for convicting the present petitioner. This Court does not wish to give any affirmative opinion on the said aspect as the said issue would be a matter of trial, which would be considered by the trial Court on the basis of evidence led by the parties during the course of trial. Undisputedly, the petitioner has been in custody since 21.09.2021 and out of 6 witnesses, 4 witnesses are yet to be examined and thus, the trial is likely to take time and the petitioner is not involved in any other case under the NDPS Act .

12. The Hon'ble Supreme Court has repeatedly held that even in a case which involves commercial quantity, the accused can be released on regular bail by taking into consideration the long period of custody of the accused. Reference in this regard may be made to the judgment of Hon'ble the Supreme Court dated 04.05.2023 passed in Special Leave to Appeal (Crl.) No(s).3221/2023 in case titled as " Hasanujjaman and others Vs. The State of West Bengal ", in which it had been observed as under:-

A perusal of the same would show that in the abovesaid case, the custody of the accused was 1 year and 4 months and while taking into consideration the fact that investigation has been completed as well as that the conclusion of trial would take time, the Hon'ble Supreme Court was pleased to grant the concession of regular bail to the petitioners therein.

13. The Hon'ble Supreme Court in case titled as " Mohammad Salman Hanif Shaikh Vs. The State of Gujarat ", vide order dated 22.08.2022 passed in Special Leave to Appeal (Crl.) No.5530-2022 was pleased to observe as under: -

The above-said case was also a case under the NDPS Act and the FIR had been registered under Sections 8(c) , 21(c) and 29 of the said Act. The case of the prosecution therein was that the recovery from the said petitioner (therein) was of commercial quantity. The Hon'ble Supreme 11 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 12 2023:PHHC:098289 Court had observed that the concession of bail was being granted to the petitioner (therein) only on the ground that he had spent about two years in custody and the conclusion of trial will take some time.

14. Hon'ble Supreme Court in Criminal Appeal No.245/2020 titled as " Chitta Biswas Alias Subhas Vs. The State of West Bengal ", vide order dated 07.02.2020, was pleased to grant concession of bail to the petitioner (therein) in a case where the custody was of 1 year and 7 months approximately. The relevant portion of the said order dated 07.02.2020 is as under: -

15. In another case i.e., Criminal Appeal No.1169 of 2022 titled as 12 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 13 2023: PHHC:098289 "Gopal Krishna Patra @ Gopalrusma Vs. Union of India ," vide order dated 05.08.2022, the Hon'ble Supreme Court was pleased to observe as under: -

The appeal is allowed in aforesaid terms."

A perusal of the above-said order would show that in the said case also, the custody was of approximately 2 years, 1 month and 17 days and the case was under the NDPS Act and primarily, considering the longevity of the custody period, concession of bail was granted to the petitioner (therein).

16. The Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.) No.5769/2022 titled as "Nitish Adhikary @ Bapan Vs. The 13 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 14 2023:PHHC:098289 State of West Bengal", vide order dated 01.08.2022, was pleased to observe as under: -

A perusal of the said order would also show that the said case was under the NDPS Act and the provisions of Section 37 of the NDPS Act were also mentioned in the same and the concession of bail was granted primarily by considering the petitioner (therein) had undergone custody for a period of 01 year and 07 months and only one witness had been examined.

17. The Hon'ble Division Bench of this Court in Bhupender's case (supra), had also held that in case, the accused person is able to make out a case within the parameters of Article 21 of the Constitution of India on the basis of period of custody, then he deserves the concession of regular bail, even in the face of rigors of Section 37 of the NDPS Act.

18. A coordinate Bench of this Court vide order dated 24.04.2023 14 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 15 2023:PHHC:098289 passed in CRM-M-19626-2022 titled as " Roop Singh Vs. State of Punjab "

20. In case of breach of any of the above conditions, the 15 of 16 ::: Downloaded on - 04-08-2023 00:53:52 ::: Neutral Citation No:=2023:PHHC:098289 CRM-M-8596-2023 16 2023:PHHC:098289 prosecution shall be at liberty to move an application for cancellation of bail before this Court.

21. Nothing stated above shall be construed as a final expression of opinion on the merits of the case and the trial would proceed independently of the observations made in the present case which are only for the purpose of adjudicating the present bail petition.