Kuldeep Singh v. State of Punjab

KULDEEP TIWARI, J. (ORAL)

¶1Through this second petition cast under Section 439 of the Cr.P.C., the petitioner craves for him being enlarged on regular bail, in case FIR No.15 dated 21.01.2023, under Section 22 of the N.D.P.S Act, 1985, registered at P.S. City South, Moga, District Moga.

¶2Earlier, the petitioner had approached this Court through filing CRM-M-31812-2023, thereby claiming a relief alike to the one at hand, however, vide order dated 13.09.2023, the said petition was dismissed as withdrawn at that stage. GIST OF THE FIR

¶3The present FIR derives its origin from the statement made by one A.S.I. Major Singh, therefore, the relevant extract of his statement, as narrated by the learned Judge, Special Court, Moga, in its order dated

22.03.2023, whereby, regular bail was declined to the petitioner, is CRM-M-4758-2024 2 reproduced hereunder:- "Perusal of record shows that present FIR was registered by the police on the allegations that the police party headed by ASI Major Singh was going from village  hari! towards village Ramawala "alan in connection with patrolling and chec!ing of bad elements# $hen police party found that one person was seen sitting on the edge of the road# %n seeing the police party& he got perple'ed and tried to flee away after throwing away the one polythene envelop of blac! colour# %n suspicion& said person was apprehended and disclosed his identity as "uldeep Singh# (pon chec!ing of polythene envelop thrown by accused)applicant& it was found to be containing *+ strips of into'icant tablets Mar! ,te-ola.M/ 0#+ mg each strip containing 10 tablets 2total *+0 tablets34 SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER

¶4The learned counsel for the petitioner submits that, the petitioner has not committed any offence, rather he has been falsely implicated in the present case. Moreover, the prosecution has, in order to escape the mandatory compliance of the statutory provisions embodied in Section 50 of the N.D.P.S. Act, concocted a false story that the petitioner had thrown the polythene bag containing the contraband from his pocket.

¶5Nonetheless, the thrust of the arguments advanced by the learned counsel for the petitioner is that, more than a year has elapsed since the withdrawal of petitioner's earlier petition before this Court, however, there has been no progress in the trial. Therefore, he submits that, since the trial has reached only midway inasmuch as only seven prosecution witnesses, out of total thirteen witnesses, have been examined so far, hence, no fruitful purpose would be served by keeping the petitioner behind the bars, who has already suffered incarceration of approx. 01 year and 9½ months. SUBMISSIONS OF THE LEARNED STATE COUNSEL

¶6Per contra, the learned State counsel has opposed the grant of regular bail to the petitioner, on the ground that, since the recovered contraband falls within the category of "commercial quantity", therefore, in view of the statutory bar engrafted in Section 37 of the N.D.P.S. Act, the petitioner do not deserve the concession of bail. He further submits that, the petitioner has to prima facie establish that he is not involved in the present case.

¶7The learned State counsel has also filed the custody certificate of the petitioner, which is taken on record. Moreover, on instructions imparted to him by the official concerned, he has verified that, only seven prosecution witnesses, out of total thirteen witnesses, have been examined so far. ANALYSIS

¶8Before embarking upon the process of evaluating the argu-ments 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.

¶9"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 en-shrined 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.

¶10The right to a speedy trial is one of the rights of a detained per-son. However, while deciding application for regular bail, the Courts shall also take into consideration the fundamental precept of criminal jurispru-dence, which is "the presumption of innocence", besides the gravity of of-fence(s) involved.

¶11In "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 Cal-cutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476 (479, 480) that the object of bail is to secure the attendance of the ac-cused 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 de-serve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 Al-lahabad 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 pre-ceding 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 con-ferred by Section 498 and that the only principle which was estab-lished 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 unfet-tered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is danger-ous to make an attempt to classify the cases and to say that in partic-ular 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 de-fend 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 ju-dicial 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 cumula-tive effect of which must enter into the judicial verdict. Any one sin-gle circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

¶12Also, 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 consid-ering 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 an-tecedents 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 en-abled 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 con-stitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by re-fusal 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 rea-sonableness, 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 per-spective 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 con-sideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and ex-pensive custody of avoidable incarceration makes refusal of bail un-reasonable 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 com-mitting offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confi-dence 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 judi-cial 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 CRM-M-4758-2024 8 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."

¶13The 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 con-tained 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." FINAL ORDER

¶14This Court has examined the instant petition on the touchstone of the hereinabove extracted settled legal principles of law and is of the opinion that the instant petition deserves to be allowed, for the reasons

¶15Considering the hereinabove made submissions, especially the fact that: (i) in view of law laid down by the Hon'ble Supreme Court, sufficient period of incarceration dilutes the stringent conditions of Section 37 of the N.D.P.S. Act; (ii) the petitioner has, as per custody certificate, suffered incarceration of approx. 01 year, 9 months and 10 days, and, he has clean antecedents; (iii) the trial is not likely to conclude anytime soon, as only seven prosecution witnesses, out of total thirteen witnesses, have been examined so far; this Court deems it appropriate to grant the concession of regular bail to the petitioners. 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.

¶16However, 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) November 04, 2024

JUDGE devinder :

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision : November 04, 2024 KULDEEP SINGH -PETITIONER V/S STATE OF PUNJAB -RESPONDENT CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI Present: Mr. Parminder Singh Sekhon, Advocate for the petitioner. Mr. Sahil R. Bakshi, A.A.G., Punjab. ***