- Court
- High Court of Punjab and Haryana
- Decided
- 1 May 2024
- Bench
- Jasgurpreet Singh Puri
- Case no.
- CRM-M 62098/2023
Judgment
JASGURPREET SINGH PURI, J. (Oral)
¶1The present is a fourth petition filed under Section 439 of the Code of Criminal Procedure for the grant of regular bail to the petitioner in FIR No.29 dated 15.03.2022, under Sections 21/29/61/85 of the NDPS Act, Section 201 of the IPC and Section 52-A of the Prison Act, registered at Police Station Division No.1, District Jalandhar, Punjab.
¶2Learned counsel appearing on behalf of the petitioner submitted that the petitioner is in custody for about 2 years and it is a case where there has been no recovery from the petitioner and his name has surfaced on the basis of disclosure statement of other co-accused, namely, Karan Singh. He further submitted that the aforesaid co-accused, namely, Karan Singh was apprehended by the police and there was a recovery of 150 grams of heroin from him and the CRM-M-62098-2023 (O&M) -2-allegation against the petitioner on the basis of disclosure statement of aforesaid co-accused was that although the petitioner was in custody in some other case but he had been instrumental in supplying of the aforesaid heroin. He further submitted that the petitioner has been falsely implicated in the present case only because he is involved in four more cases. He further submitted that the charges in the present case were framed by the learned trial Court on 07.06.2022, which is more than 1 year and 10 months ago and none of the material witnesses has been examined and in fact only 2 prosecution witnesses have been examined out of total cited 9 prosecution witnesses and those witnesses are also not material witnesses but are those witnesses who had deposited the sample in the forensic laboratory. He also submitted that there had been no recovery from the petitioner particularly in view of the fact that at the time of occurrence, he was already in custody in some other case and the trial of the case is going at a very slow pace and the police officials, who had arrested the aforesaid co-accused, namely, Karan Singh have not deposed before the learned trial Court despite the fact that charges in the present case were framed more than 1 year and 10 months ago.
¶3Learned counsel appearing on behalf of the petitioner referred to a judgment of Hon'ble Supreme Court in Satender Kumar Antil versus Central Bureau of Investigation and another, [2022 (10) SCC 51] and contended that when there is a long custody, which is not attributable to the accused and the delay has been caused by the prosecution, then Rights under Article 21 of the Constitution of India are affected. He also referred to another judgment of Hon'ble Supreme Court in "Mohd. Muslim @ Hussain versus State (NCT of D elhi)", 2023 AIR (SC) 1648 , wherein the scope of Section 37 of the NDPS CRM-M-62098-2023 (O&M) -3-Act vis-a-vis Article 21 of the Constitution of India has been discussed by taking a serious view with regard to long trial. He further referred to the judgments of Hon'ble Supreme Court in "Dheeraj Kumar Shukla versus The State of Uttar Pradesh", 2023 SCC Online SC 918 and "Rabi Prakash versus The State of Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023 to contend that long custody itself is a ground for grant of bail notwithstanding the bar contained under Section 37 of the NDPS Act.
¶4On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab submitted that it is correct that the petitioner is in custody for about 2 years and there has been no recovery from the petitioner in the present case and his name was nominated on the basis of disclosure statement of aforesaid co-accused, namely, Karan Singh, from whom there was a recovery of 150 grams of heroin and at the time of occurrence, the petitioner was already in custody in some other case. He has however opposed the grant of regular bail to the petitioner on the ground that the petitioner was instrumental in the trading of heroin even while sitting in the jail and therefore, he does not deserve the concession of regular bail.
¶5I have heard the learned counsel for the parties.
¶6It is a case where the petitioner is in custody for about 2 years and as per the prosecution story, the name of the petitioner was nominated on the basis of disclosure statement of aforesaid co-accused, namely, Karan Singh from whom there was a recovery of 150 grams of heroin. At the time of occurrence, the petitioner was already in custody in some other case. The allegation against the petitioner was that he was instrumental in the trading of heroin along with the aforesaid co-accused. The charges in the present case CRM-M-62098-2023 (O&M) -4-were framed by the learned trial Court on 07.06.2022, which is more than 1 year and 10 months ago and as per the learned counsel for the parties, only two prosecution witnesses have been examined but none of recovery witnesses or that of the police party has been examined and those two witnesses who have been examined are only formal witnesses. During the course of arguments, on a query being raised to the learned State counsel as to what is the justification as to why the prosecution witnesses are not coming forth despite the fact that charges were framed more than 1 year and 10 months ago, to which he could not offer any explanation.
¶7Hon'ble Supreme Court in Satender Kumar Antil's case (supra) has discussed this serious issue with regard to delay in trial and its effect on the Right to Life of an individual under Article 21 of the Constitution of India. Para 49 of the aforesaid judgment is reproduced as under:- "49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the non-compliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must CRM-M-62098-2023 (O&M) -5-be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own".
¶8Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case (supra) has dealt with this issue with regard to delay in trial and long custody of the accused person vis-a-vis the bar contained under Section 37 of the NDPS Act. The relevant portion of the aforesaid judgment contained in para Nos.19 and 20 are reproduced as under:-
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. CRM-M-62098-2023 (O&M) -6-
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.
¶9The Hon'ble Supreme Court in Dheeraj Kumar Shukla's case (supra) has observed as under:- "3. It appears that some of the occupants of the 'Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed."
¶10The Hon'ble Supreme Court in Rabi Prakash's case (supra) has also discussed the effect of Section 37 of the NDPS Act in such like cases of CRM-M-62098-2023 (O&M) -7-long custody. The relevant portion of the aforesaid judgment contained in para No.4 is reproduced as under:- "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."
¶11Learned State counsel also submitted that the petitioner is involved in four more cases, out of which there are two convictions as well and considering the fact that the petitioner is a habitual offender, he does not deserve the concession of regular bail cannot be accepted in view of the fact that mere fact that the petitioner is involved in four more cases itself cannot become a ground for denial of regular bail to the petitioner when there are other factors by which the petitioner becomes entitled for grant of regular bail.
¶12In view of the aforesaid facts and circumstances, this Court is of the view that considering the long custody of the petitioner, the fact that the petitioner was already in custody in some other case when the aforesaid confiscation took place from the aforesaid co-accused, despite the framing of charges more than 1 year and 10 months ago none of the material witnesses has CRM-M-62098-2023 (O&M) -8-been examined and only two formal witnesses have been examined and in the light of aforesaid judgments of the Hon'ble Supreme Court, the petitioner deserves the concession of regular bail.
¶13Consequently, the present petition is allowed. The petitioner shall be released on regular bail, if not required in any other case, subject to furnishing bail bonds/surety bonds to the satisfaction of the learned trial Court/Duty Magistrate concerned.
¶14However, anything observed hereinabove shall not be treated as an expression of opinion on the merits of the case and is meant for the purpose of deciding the present petition only. (JASGURPREET SINGH PURI)
01.05.2024 JUDGE Chetan Thakur
Case details
Parties and counsel
CRM-M-62098-2023 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-62098-2023 (O&M) Date of decision: 01.05.2024 JORA SINGH ...Petitioner VERSUS STATE OF PUNJAB ...Respondent CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI Present:- Mr. V. K. Pujara, Advocate for Mr. C. S. Rana, Advocate for the petitioner. Mr. Adeshwar Singh Pannu, AAG, Punjab. ****
Source: High Court of Punjab and Haryana, through the eCourts High Court services, via the Indian High Court Judgments open dataset by Dattam Labs (CC BY 4.0). Text was extracted from the official PDF and may contain conversion errors. Check the official PDF before relying on it.