Sukhjinder Singh Alias Chhotu Moosa v. State of Punjab

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision: 29.05.2024 SUKHJINDER SINGH ALIAS CHHOTU MOOSA ....Petitioner Versus STATE OF PUNJAB ...Respondent CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI Present : Mr. Kanwaljeet Singh, Advocate for the petitioner. Mr. Akshay Kumar, AAG, Punjab. KULDEEP TIWARI. J.(Oral)

¶1Through the instant petition, the petitioner craves for indulgence of this Court for his being enlarged on regular bail, in case FIR No.42 dated

25.05.2023, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and under Sections 25 of the Arms Act, registered at Police Station Daresi, District Police Commissionerate Ludhiana. ALLEGATIONS AGAINST THE PETITIONER

¶2The gist of the allegations as culled out from the FIR, reads as under:- "SHO Police Station Daresi District Ludhiana, "Jai Hind" Today I SI along with ASI Nirbhai Singh No: 888/LDH, HC Balwinder Singh No. 3703/LDH, SC Kulwinder Singh No. 1472/LDH, SC Sunil Kumar No. 1178/LDH, PHG Gurmeet Singh No. 29485/LDH along with a private laptop and printer on government vehicle Balero PB10-GK-0572 whose driver is ASI Jasvir Singh No.1714/Ludhi: were present Near Sekhewal Road, Bajwa Nagar Bridge Ludhiana, during checking on a TVS Jupiter color grey number PB10FH-1318, 02 young men were

seen coming from Bajwa Nagar side to Sekhewal side. Those who suddenly panicked on seeing the police party standing ahead and started to turn back, fell down due to the slip of the tire of the scooter in the rush and along with them a transparent polythene envelope heavy weighing also fell on the ground. Whom on the basis suspicion, I SI with the help of fellow employees apprehended and asked their names and addresses. When asked, the scooter driver gave his name as Sukhjinder Singh alias Chhotu Musa, son of Mahinder Singh, resident of house number 10473, Street No. 2, Indira Calony. Backside HP Pump Road, Police Station Tibba, Ludhiana, and the other boy gave his name Gaurav Dang, son of Inderjit, resident of house number 1090/17 Street No. 2 C Basti Gujran Bal Singh Nagar, Police Station Daresi Ludhiana. Fallen transparent polythene envelope was made picked from the ground by the arrested scooter driver Sukhjinder Singh alias Chhotu Musa with his hands and checked, which is heroin, by stopping the passers-by, they tried to make witnesses but each one expressed their compulsions. I SI opened and checked the transparent envelope, which contained heroin. The Sl weighed the heroin by taking out an electronic weighing scale from my investigation bag. The weight, including the polythene envelope, comes out as 265 grams. By putting the heroin weighing 265 grams in a plastic box and preparing a cloth bundle, I SI stamped it all with my seal letter JS and prepared a sample seal separately. Personal search of both the apprehended persons was conducted and During the search, a 32 bore Desi pistol was found from the left pocket of the pants worn by Sukhjinder Singh alias Chhotu Musa and 02 bundles of Rs. 500/500 Indian currency notes from the right pocket total 1 lakh and 01 bundle of 100/100 rupees notes, total 01 lakh 10 rupees were recovered. Recovered Pistol 32 Bore Desi checked by I SI. On checking, there are 03 live rounds from the magazine of the pistol, which were unloaded. Recovered pistol 32 bore was measured, which on measurement was about 05 fingers with black plastic attached on both sides, barrel iron about 05 fingers and body

iron about 04 fingers, of which a separate layout was prepared. Similarly, the personal search of accused Gaurav Dang was carried out. During the search, a 32-bore desi pistol was recovered from Gaurav Dang's left side. Which was also checked by 1 SI. On checking, there are 03 rounds live loaded in the magazine of the pistol which were unloaded. Which was measured, on measuring it came to be about 04 fingers with black plastic attached on both sides, barrel iron about 03 fingers and body iron about 03 fingers, of which a separate layout was prepared. That accused Sukhjinder Singh alias Chhotu Musha and Gaurav Dang could not produce any license regarding possession of pistols and could not give any satisfactory answer. I SI sealed everything with seal letter JS after preparing different cloth bundles of recovered heroin, currency notes and 02 pistols 32 bore desi and 06 rounds. After use seal was handed over to ASI Nirbhai Singh No: 888/LDH. Bundle of Recovered heroin, bundles of 02 pistol 32 bore desi illegal, bundles of 02 live rounds 32, bundle of drug money 01 lakh 10 thousand rupees, all stamped with JS including sample stamp and scootery were taken into police custody through different recovery memo as evidence. Witnesses put their signatures on the memo. Sukhjinder Singh alias Chhotu Musa and Gaurav Dang by keeping possession of heroin, illegal weapons commits the offence under section 22/61/85 NDPS Act and 25/54/59 3703/ARMS Act. Therefore, ruqa after typing on private laptop through HC Balwinder Singh No: 3703/ldh and got it printed sent to police station through by hand SC Sunil Kumar no. 1178/ldh to register a case against Sukhjinder Singh aka Chhotu Musa and Gaurav Dang and information under section 42 NDPS Act has already been prepared and sent to the service of superior officers. After registering, the number should be made aware of the case. Special reports to be issued. I SI along with other fellow party is busy in investigation at the spot. At present Today:- Shekhewal, Near Bajwa Nagar Bridge, Ludhiana AT 01:25 PM, Attested Jagdeep Singh SI/43/LPCT Crime Branch 1, Ludhiana Dated: 25.05.2023.

What reflects from the above is that the petitioner was apprehended carrying 265 grams of heroin, without any licence or permit, along with 2 local made pistols of .32 bore, 06 live cartridges of .32 bore, and Rs.1,10,000/- of drug money. SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER

¶3The learned counsel for the petitioner, in his asking for the hereinabove extracted relief, has made the following submissions:-

(i) The recovery which is effected from the petitioner is marginally above the commercial quantity;

(ii) The petitioner is not involved in any other criminal case;

(iii) Petitioner has suffered incarceration of 01 year, as on today;

(iv) The final report under Section 173 Cr.P.C., had already been filed on 29.09.2023.

(vi) Out of the total 15 prosecution witnesses cited in the final report, none has been examined till date. SUBMISSIONS OF THE LEARNED STATE COUNSEL

¶4Per contra, the learned State counsel, who is in receipt of advance notice, has placed on record the custody certificate of the petitioner, as issued by the Superintendent of Central Jail Ludhiana. The same is taken on record. A perusal of the custody certificate reveals that the petitioner has suffered incarceration of 01 year, as on today. A perusal of the custody certificate further reveals that the petitioner is involved in not involved in any other criminal case. Learned State counsel on instructions, imparted to him from the official respondent, submits that after conclusion of the investigation, the final report under Section 173 Cr.P.C., had already been filed on 29.09.2023. Learned State counsel further submits that out of

the total 15 prosecution witnesses cited in the final report, none has been examined till date. ANALYSIS

¶5Before 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.

¶6"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.

¶7The 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 jurisprudence, which is "the presumption of innocence", besides the gravity of offence(s) involved.

¶8In "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

¶437It 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 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

¶29In 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".

¶30In 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." 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."

¶9Also, 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.

¶10The 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 that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice - to the individual involved and society affected.

¶11We 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.

¶12A 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 around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our Constitution.

¶13Viewed 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."

¶10This Court has examined the instant petition on the touchstone of the

hereinabove extracted settled legal principle(s) of law and is of the considered opinion that the instant petition is amenable for being allowed.

¶11The reason for forming the above inference emanates from the factum that:- (i) The recovery which is effected from the present petitioner is marginally above the commercial quantity; (ii) The petitioner has suffered incarceration of 01 year, as on today; (iii) Out of the total 15 prosecution witnesses cited in the final report, none has been examined till date. (iv) The final report under Section 173 Cr.P.C was filed on 29.09.2023, (v) No fruitful purpose would be served by keeping the petitioner behind the bars, (vi) Trial is not likely to conclude anytime soon. FINAL ORDER

¶12Considering the hereinabove made discussion, this Court deems it fit and appropriate to grant the concession of regular bail to the petitioner. Therefore, without commenting upon the merits and circumstances of the present case, the present petition is allowed. The petitioner is ordered to be released on bail on furnishing of bail bond and surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial Court/Duty Magistrate.

¶13However, anything observed here-in-above shall have no effect on the merits of the trial, and is only meant for deciding the present petition.

¶14All pending application(s) stand disposed of accordingly. (KULDEEP TIWARI)

29.05.2024 JUDGE amandeep Whether speaking/reasoned. : Yes/No Whether Reportable. : Yes/No