- Court
- High Court of Punjab and Haryana
- Decided
- 28 February 2024
- Bench
- Kuldeep Tiwari
- Case no.
- CRM-M 57109/2023
Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-57109-2023 (O&M) Date of Decision : February 28, 2024 JAGTAR SINGH @ JAGGA .....Petitioner VERSUS STATE OF PUNJAB .....Respondent CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI Present : Mr.P.S.Hundal, Sr. Advocate with Mr. Vikramjeet Singh, Advocate, for the petitioner. Mr. Akshay Kumar, AAG, Punjab. KULDEEP TIWARI . J.(Oral)
¶1The petitioner, who has been implicated on a disclosure statement of co-accused Simple Sharma, in case FIR No.34, dated
27.05.2021, under Section 22(C), 22(B), 29/61/85 of the Narcotic Drugs and Psychotropic Substance Act, 1985, registered at Police Station Khem Karan, District Tarn Taran, has moved the instant petition under Section 439 Cr.P.C. for grant of regular bail. ALLEGATIONS AGAINST THE PETITIONER
¶2The prosecution agency was set into motion on a complaint moved by SI Jagdeep Singh. According to whom, when he was on patrolling duty with other police officials, on suspicion he arrested two persons, i.e. Simple Sharma and Swarn Singh, from whom 3900, and 300 tablets respectively, were recovered. During investigation, it was disclosed that it was Jagtar Singh, son of Lakhwinder Singh (present petitioner), who infact supplied the said tablets to them. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR THE PETITIOER
¶3Learned senior counsel for the petitioner, in asking for the relief of regular bail, vociferously submits that except the disclosure statement of the co-accused there is nothing on record to connect the present petitioner with the crime.
¶4He further placed reliance upon an order dated 18.08.2023 passed by a co-ordinate Bench in CRM-M-11834-2022, whereby co-accused-Simple Sharma, has been granted the benefit of regular bail, from whom a heavy recovery of contraband was effected.
¶5He further submits that though the petitioner is stated to be involved in two more criminal cases under NDPS Act, however, he submits that in one case i.e. FIR No.23, dated 30.03.2023, under Sections 21(C)/29/61/85 of the NDPS Act, and the petitioner has been discharged by the learned trial Court concerned itself, whereas, in another FIR No.69, dated 07.04.2021, under Sections 21/29/61/85 of the NDPS Act, the same has been quashed by this Court. Therefore, the petitioner is facing the trial only in the instant matter, which pertains to NDPS Act.
¶6He also submits that the petitioner has suffered the incarceration of about one year, and conclusion of the trial will take a long time. SUBMISSIONS OF THE LEARNED STATE COUNSEL
¶7Per contra, the learned State counsel vociferously opposed the asked for relief, and on instructions imparted to him by ASI Heera Singh, informs this Court that the final report after investigation was filed way back on dated 25.04.2020, and the charges qua the petitioner has been framed on dated 28.01.2022, that too under Section 29 of the NDPS Act.
¶8He has also placed on record a custody certificate qua the petitioner, which is taken on record, and a perusal of the same reveals that the petitioner has suffered incarceration of 01 year and 03 days as on today.
¶9He further submits that out of the total 13 witnesses as cited by the prosecution, only 4 witnesses have been examined so far.
¶10Learned State counsel is unable to dispute the factual submissions made by learned counsel for the petitioner. ANALYSIS
11. "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.
12. 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 jurisprudence, which is "the presumption of innocence", besides the gravity of offence(s) involved.
13. In "Nikesh Tarachand Shah V. Union of India", (2018) 11 SCC 1, the Hon'ble Supreme Court has recorded the following:- "14. In Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out 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 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 All 504 : 33 Cri LJ 94] 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. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will 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.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) "... the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."
29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29) "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, Volume 8, p. 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."
14. Also, in Siddharam Satlingappa Mhetre v. State of Maharashtra, Criminal Appeal No.2271 of 2010, the Hon'ble Supreme Court has insisted upon striking a perfect balance of sanctity of an individual's liberty as well as the interest of the society, in grant or refusing bail. The relevant extract of the judgment (supra) is reproduced hereinafter:-
3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.
15. Also, Hon'ble Supreme Court in "Satender Kumar Antil versus Central Bureau of Investigation and another", 2022(10) SCC 51, 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 noncompliance 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 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".
16. 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 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."
17. This Court has examined the instant petition on the touchstone of the hereinabove extracted settled and legal principle(s) of law and is of the considered opinion that the instant petition is amenable for being allowed.
18. The reason for forming the above inference emanates from the factum that:- (i) the custody certificate (supra) reveals that the petitioner has undergone actual custody of 01 years 03 days as on today;
(ii) co-accused-Simple Sharma, has already been granted the concession of regular bail; (iii) there is no likelihood of the trial concluding anytime soon, as the trial is moving at snail's pace, only 4 prosecution witnesses have been examined out of total 13 prosecution witnesses. FINAL ORDER
19. Considering the fact that the main co-accused-Simple Sharma, has already been extended the benefit of regular bail vide order (supra), and no recovery was effected from the present petitioner, and name of the petitioner has been figured out only in the disclosure statement of the co-accused, and the petitioner has suffered incarceration of 1 year and 3 days as on today, out of the total 13 prosecution witnesses only 4 have been examined so far, this Court deems it appropriate to grant the concession of regular bail to the petitioner, during the pendency of trial. 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.
20. However, it is clarified that if in future, the petitioner is found indulging in commission of similar offences, as are involved herein, the respondent-State shall be at liberty to make an appropriate application seeking cancellation of regular bail, as granted by this Court. Moreover, anything observed here-in-above shall have no effect on the merits of the trial and is meant for deciding the present petition only. (KULDEEP TIWARI) February 28, 2024 JUDGE dharamvir Whether speaking/reasoned. : Yes/No Whether Reportable. : Yes/No
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.