- Court
- High Court of Punjab and Haryana
- Decided
- 24 September 2024
- Bench
- Sandeep Moudgil
- Case no.
- CRM-M 31763/2024
Judgment
SANDEEP MOUDGIL, J (ORAL)
¶1Relief Sought The jurisdiction of this Court under Section 439 Cr.P.C., has been invoked third time seeking the concession of regular bail for the petitioner in FIR No.181 dated 28.10.2023, under Sections 21(b) of The Narcotic Drugs and Psychotropic Substances Act, 1985 registered at Police Station Nathana, District Bathinda.
¶2Prosecution story set up in the present case as per the version in the FIR read as under :- :FIR NO.181 Dated 28.10.2023 registered under section 21
(b) of NDPS Act, 1985 at Police station Nathana, District Bathinda. Copy of Ruqa, SHO police station Nathana, Salute, Today, I SI alongwith ASI Gurmeet Singh, SR. Cepoy Rajinder Singh, SR. Cepoy Lakhwinder Singh, Lady SR. Cepoy Manpreet Kaur on.govt. vehicle Bolero NO.PB-03AT-0392 driven by ASI Harbans Singh were going to towards village Tungwali via Phirni of village Chak Fateh Singh wala on patrolling and checking of suspicious persons and when police party reached 100 yards ahead of Baba Jiwan Singh Park at Phrini of village chak Fateh Singh Wala then it was about 04.15pm, a lady came from her house CRM-M-31763-2024 2 in street on the right side of police party and was about to return back in the house and on seeing vehicle of police party, who was holding one transparent polythene in her right fist then I, SI on the basis of suspicion instantly got the vehicle stopped and nabbed the aforesaid lady with the help of colleagues and tried to join the 4/5 persons by in police party but everyone shown his difficulty, on which no independent witness could be joined. Then whereabouts of the lady were asked who gave her name as Veerpal kaur d/o Chand Singh r/o Bazigar Basti, Tappa Mandi District Barnala at present residing at Chak Fateh Singh Wala, then I SI Checked transparent polytechnic held by Veerpal kaur in her right hand from which heroin was visibly openly. Recovered heroin was measured with the help of computerized weighing scale, which came out to be 50 grams of heroin including weight of polythene. The recovered heroin was kept into same polythene and then place into plastic box and parcel was prepared, which was sealed by me with seal bearing impression HS. Sample seal was prepared separately. Seal after usage was handed over to ASI Gurpret Singh. Then parcel having heroin, duly sealed alongwith sample were taken into police possession vide separate recovery memo. Witnesses put their signature on memo. The act of Veerpal Kaur of keeping in possession 50 grams of heroin makes out offence under section 21-B, 61/85 of NDPS Act, therefore, ruqa is sent to police station for registration of FIR through Sr. Cepoy Lakhwinder Singh. FIR number be informed and after registration. Special reports be issued. Officers be informed. I, SI alongwith staff is busy in investigation at the spot, in the area of near Baba Jiwan singh Park, Phrini of village Chak Fateh Singh Wala at 05.30pm. Sd/ Harjiwan Singh SI, CIA-I Bathinda dated 28.10.2023.'
¶3Contentions On behalf of the petitioner Learned counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. As per the Anuradha allegations, the petitioner was allegedly apprehended by the police party CRM-M-31763-2024 3 holding a transparent polythene in her right hand from which 50 grams of Heroin which is non-commercial in nature was recovered. He further submits that the petitioner has been in custody for 10 months and 25 days and no fruitful purpose would be served by keeping the petitioner behind the bars as conclusion of trial would take long time as out of total 9 Prosecution Witnesses, only one has been examined so far. On behalf of the State On the other hand, learned State Counsel appearing on advance notice, accepts notice on behalf of respondent-State and has filed the custody certificate of the petitioner, which is taken on record. According to which, the petitioner is behind bars for 10 months and 25 days. Learned State Counsel on instructions from the Investigating Officer opposes the prayer for grant of regular bail on the ground that the petitioner is involved in many other FIRs, meaning thereby she is a habitual offender but is not in a position to controvert the submissions made by counsel for the petitioner. He informs the Court that in the present FIR challan stands presented on 12.01.2024 and charges stands framed on 06.04.2024.
¶4Analysis From the above case it can be culled out that the petitioner has already suffered sufficient period in custody i.e. 10 months and 25 day; the fact that recovery of the alleged contraband was made from a transparent polythene bag which is highly improbably to be believed as to no accused would carry a contraband in the nature of Heroin in a transparent carry bag. As per the principle of the criminal jurisprudence, no one should be considered guilty, till the guilt is proved beyond CRM-M-31763-2024 4 reasonable doubt, whereas in the instant case, challan stands presented on
12.01.2024 charges stands framed on 06.04.2024 out of 09 prosecution witnesses, only one has been examined so far which is sufficient for this Court to infer that the conclusion of trial is likely to take considerable time and detaining the petitioner behind the bars for an indefinite period would solve no purpose. Reliance can be placed upon the judgment of the Apex Court rendered in "Dataram versus State of Uttar Pradesh and another", 2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of bail is a general rule and putting persons in jail or in prison or in correction home is an exception. Relevant paras of the said judgment is reproduced as under:- "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether CRM-M-31763-2024 5 denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658 CRM-M-31763-2024 6
6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory." Therefore, to elucidate further, this Court is conscious of the fundamental principle of law that right to speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of the Constitution of India. This constitutional right cannot be denied to the accused as is the mandate of the Apex court in "Hussainara Khatoon and ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction period of the under-trials should be as short as possible keeping in view the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. CRM-M-31763-2024 7 As far as the pendency of other cases and involvement of the petitioner in other cases is concerned, she is on bail in all the FIRs mentioned in the custody certificate wherein three FIRs are registered under the NDPS Act, one is under Excise Act and another is registered under Section 379-B IPC and the custody period in those FIRs would make suffice for this Court to believe that quantity of contraband recovered in those FIRs might be of non-commercial in nature as in all those FIRs custody period of the applicant is of few weeks or less than a month. Further, reliance can be placed upon the order of this Court rendered in CRM-M-25914-2022 titled as "Baljinder Singh alias Rock vs. State of Punjab" decided on 02.03.2023, wherein, while referring Article 21 of the Constitution of India, this Court has held that no doubt, at the time of granting bail, the criminal antecedents of the petitioner are to be looked into but at the same time it is equally true that the appreciation of evidence during the course of trial has to be looked into with reference to the evidence in that case alone and not with respect to the evidence in the other pending cases. In such eventuality, strict adherence to the rule of denial of bail on account of pendency of other cases/convictions in all probability would land the petitioner in a situation of denial of the concession of bail.
¶5At this stage, learned counsel for the petitioner submits that subsequent Section 29 of the NDPS Act has also been added on
29.10.2023 but the same was not mentioned in the order passed by the Trial Court or in the prayer clause of the present petition.
¶6On non-addition of the Section 29 of the NDPS Act in the pleadings before this Court, I am of the considered view that same CRM-M-31763-2024 8 might not be attracted qua the present petitioner at least since there was no specific recovery from the present petitioner and was apprehended at the spot and therefore, question of nomination of hers on the basis of disclosure statement of the co-accused does not arise, hence, the petitioner is ordered to be granted regular bail for the offences under Sections 21(b) and 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985.
5. Decision: In view of the aforesaid discussions made hereinabove, the petitioner is directed to be released on regular bail under Section 439 Cr.P.C. on her furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate, concerned. However, it is made clear that anything stated hereinabove shall not be construed as an expression of opinion on the merits of the case. The petition in the aforesaid terms stands allowed. (SANDEEP MOUDGIL) JUDGE
24.09.2024
Case details
Parties and counsel
CRM-M-31763-2024 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 207 CRM-M-31763-2024 DATE OF DECISION: 24.09.2024 VEERPAL KAUR ...PETITIONER Versus STATE OF PUNJAB ... RESPONDENT CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL Present: Mr. Naveen Sharma, Advocate for the petitioner(s). Mr. J.S. Rattu, DAG, 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.