- Court
- High Court of Punjab and Haryana
- Decided
- 3 October 2024
- Bench
- Kuldeep Tiwari
- Case no.
- CRM-M 9338/2024
Judgment
KULDEEP TIWARI, J.(Oral)
1. Through the instant petition filed under Section 439 of Cr.P.C., the petitioner prays for grant of regular bail in case FIR No.22 dated
27.01.2022 (Annexure P-1), under Sections 22/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Model Town, District Hoshiarpur.
2. The petitioner, who has clean antecedents, has approached this Court, seeking grant of regular bail in case FIR (supra). The case of the prosecution as per the FIR (supra) is that :- "On 27.01.2022, police party headed by ASI Buta Singh alongwith other police officials i.e. ASI Sukhdev Singh 668/Hpr., CT Jaswant Singh 1096/Hpr., CT Rajat Sharma 1234/Hpr., were present at CIA Staff, Hoshiarpur, then ASI Mahesh Chander 350/Hpr, Constable Jaspal Singh 448/Hpur, CT Sumit Kumar 1160/Hpr, had apprehended AJAY KUMAR one person alongwith mortorcycle PB-07-AB-0157 near
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Bhangi Choe on the Pucca Road, new Shashtri Nagar, near Lajwanti Stadium, Hoshiarpur, who has disclosed his name as Jagdish Kumar son of Shingara Ram, resident of Backside Mahavir Factory, Sunder Nagar Purhiran, Police Station Model Town, Hoshiarpur, who was suspected to be having some intoxicants articles and Investigating Officer be sent. Then Investigating Officer reached at Bhangi Choe Shashtri Nagar and after completing necessary formalities got recovered 800 capsules Blue coloured. Accordingly case was registered against the accused under Section 22-61-85 of ND&PS Act and accused was arrested." In nut shell, the case of the prosecution is that a recovery of
483.2 grams of Tramadol Hydrocloride was effected from the present petitioner and he was arrested on 16.02.2023. SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. Learned counsel for the petitioner submits that the petitioner has suffered incarceration of more than 01 year and 08 months, as on date, and asking for the relief (supra), submits that till date only 03 witnesses, out of total 10 prosecution witnesses has been examined, as cited by the prosecution. He further submits that non-compliance of Section 50 of the NDPS Act, has been made, which goes to the root of the matter. Finally, he submits that the petitioner is not involved in any other criminal case, or under the NDPS Act, and has clean antecedents, and has been falsely implicated in the instant case. SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. On the other hand, learned State counsel on instructions imparted to him by ASI Hans Raj, has opposed the grant of regular bail to the petitioner, on the ground that since the recovery effected in the instant case, AJAY KUMAR
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falls under the ambit of commercial quantity, therefore, the bar under Section 37 of the NDPS Act, operates and it was the petitioner, who has to discharge the onus, while establishing prima facie that no case is made out against the petitioner.
5. Learned State counsel has also placed on record the custody certificate dated 01.10.2024, qua the petitioner, in the Court today, the same is taken on record. The custody certificate reflects that the petitioner has undergone more than 01 year and 08 months in custody, as on today. ANALYSIS
6. Before embarking upon the process of evaluating the arguments addressed by the learned counsels for the parties and penning down any opinion upon the instant petition, it is deemed imperative to capture an overview of some significant legal propositions.
7. "Bail is the Rule and Jail is an Exception". This basic principle of criminal jurisprudence was laid down by the Hon'ble Supreme Court, way back in 1978, in its landmark judgment titled "State of Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one of the most distinguished fundamental rights, as enshrined in Article 21 of the Constitution of India. Though the underlying objective behind detention of a person is to ensure easy availability of an accused for trial, without any inconvenience, however, in case the presence of an accused can be secured otherwise, then detention is not compulsory.
8. The right to a speedy trial is one of the rights of a detained person. However, while deciding application for regular bail, the Courts shall also take into consideration the fundamental precept of criminal
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jurisprudence, which is "the presumption of innocence", besides the gravity of offence(s) involved.
9. In "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out by the Hon'ble Supreme Court with great felicity as follows:- "27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476 (479, 480) that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the 'Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 Allahabad 504 (SB) it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson, AIR 1931 Allahabad 356 at p. 358 it was said that it was very unwise to make an attempt to lay
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down any particular rules which bind the High Court, having regard to the fact that the legislature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. XX XX XX
29. In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 it was observed by Goswami, J., who spoke for the Court, that "there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail".
30. In American Jurisprudence (2d, Vol. 8, page 806, para 39) it is stated : "Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."
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It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
10. Also, in "Gudikanti Narasimhulu and others Versus Public Prosecutor, High Court of Andhra Pradesh", 1978 AIR (Supreme Court) 429, the Hon'ble Supreme Court, speaking through Krishna Iyer, J., has enunciated the principles of bail thus : "9. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the member of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
10. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to he goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates AJAY KUMAR that deprivation of freedom by refusal of bail is not for
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punitive purpose but for the bi-focal interests of justice - to the individual involved and society affected.
11. We must weight the contrary factors to answer the test the reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare of present his case than one remanded in custody. And if public justice is to be promoted. mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.
12. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defence and individual correction along an anti-criminal direction. Public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung AJAY KUMAR around bail orders, not to cripple but to protect. Such is
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the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.
13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdit once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so - of innocence has been recorded by one court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and policy prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal."
11. The Hon'ble Supreme Court in "Rabi Prakash Versus The State of Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023, has also discussed the effect of Section 37 of the NDPS Act, in such like cases of long custody. The relevant portion of the aforesaid judgment contained in para AJAY KUMAR No.4 is reproduced as under:-
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"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."
12. In the recent judgment passed by the Hon'ble Supreme Court in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and another, 2024 (3) RCR (Criminal), 494, it has been specifically held that the right to speedy trial of offenders facing criminal charges is implicit in the broad sweep and content of Article 21. The relevant extract of the same reads as under:- "18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.
19. If the State or any prosecuting agency including the 2024.10.05 17:18 court concerned has no wherewithal to provide or protect
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the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be." DECISION
13. This Court, has examined the instant petition on the touchstone of the hereinabove extracted settled legal principle(s) of law and the rival submissions made by the learned counsel for the parties concerned, and is of the considered opinion that the instant petition is amenable to be allowed for the reasons extracted hereinbelow :-
i) that the petitioner has suffered incarceration of more than 01 year and 08 months, as on today;
ii) that the petitioner is not involved in any other criminal case and has clean antecedents;
iii) that the trial in the instant case, is still at the initial stage, and conclusion of the same will take long time.
14. In view of the above, this Court deems it fit and appropriate to enlarge the petitioner on regular bail. Accordingly, the instant petition is allowed. The petitioner is ordered to be released on bail on furnishing of bail bonds and surety bonds to the satisfaction of Chief Judicial Magistrate/trial Court/Duty Magistrate, concerned.
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15. However, anything observed here-in-above shall have no effect on the merits of the case and is meant for deciding the present petition only.
(KULDEEP TIWARI) JUDGE
October 03, 2024 Manpreet
Case details
Parties and counsel
CRM-M-9338-2024 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (227) CRM-M-9338-2024 Date of Decision : 03.10.2024 Jagdish Kumar @ Jaggi …Petitioner Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI Present: Mr. Liaqat Ali, Advocate for the petitioner. Mr. Sahil R. Bakshi, 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.