Punjab-Haryana High Court
Sahib Singh vs State Of Punjab on 5 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:046348
CRM-M-15637-2024(O&M) -1- 2024:PHHC:046348
206
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-15637-2024(O&M)
Date of Decision: 05.04.2024
Sahib Singh
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Msr. V.K. Sandhir, Advocate, for the petitioner.
Mr. Adeshwar Singh Pannu, AAG, Punjab.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present is a second petition filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner in FIR No.188 dated 31.10.2021, under Sections 21-C, 25 and 29 of NDPS Act, registered at Police Station Special Task Force, District STF Wing.
2. Learned counsel for the petitioner has submitted that the petitioner is in custody for 2 years, 5 months and 4 days and charges in the present case were framed on 07.06.2022 which is about 1 year and 10 months ago and till date no prosecution witness has been examined. He submitted that although the alleged recovery from the petitioner was 150 grams of heroin on the spot and thereafter on his disclosure, there was a recovery of 500 grams of heroin which although falls in the category of commercial quantity under the NDPS Act but the bar of Section 37 of the NDPS Act will not apply in the present case in view of the peculiar facts and 1 of 6 ::: Downloaded on - 09-04-2024 00:53:37 ::: Neutral Citation No:=2024:PHHC:046348 CRM-M-15637-2024(O&M) -2- 2024:PHHC:046348 circumstances. He submitted that the other co-accused namely, Gagandeep Singh @ Gagan has been granted regular bail by this Court vide Annexure P-2 in CRM-M-54287-2023 on 11.01.2024 especially on the ground that the trial of the case has not commenced at all and no witness has been examined and therefore, in the light of the various judgments of the Hon'ble Supreme Court, the bail petition was allowed. He submitted that the petitioner is also at parity with the aforesaid co-accused namely, Gagandeep Singh @ Gagan. He also referred to the judgments of Hon'ble Supreme Court in Satender Kumar Antil Versus Central Bureau of Investigation and another [2022 (10) SCC 51], Mohd. Muslim @ Hussain Versus State (NCT of Delhi) [2023 AIR (SC) 1648], Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave to Appeal (Crl.) No.(s) 6690 of 2022) and Rabi Prakash Versus State of Odisha, Special Leave to Appeal (Crl.) No.4169 of 2023.
3. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab has submitted on instructions from ASI Jang Singh who is present in the Court that so far as the custody of the petitioner is concerned, the same is correct and about 1 year and 10 months have elapsed after the framing of the charges but no prosecution witness has been examined till date. He submitted that the petitioner is not at parity with the aforesaid co-accused namely, Gagandeep Singh @ Gagan because the petitioner is involved in two more cases, one under the NDPS Act and one under IPC and the recovery in the present case was from the right pocket of the petitioner.
4. I have heard the learned counsel for the parties.
5. It is a case where the petitioner has already faced incarceration for 2 years, 5 months and 4 days and charges in the present case were framed on 07.06.2022 which is about 1 year and 10 months ago and till date 2 of 6 ::: Downloaded on - 09-04-2024 00:53:38 ::: Neutral Citation No:=2024:PHHC:046348 CRM-M-15637-2024(O&M) -3- 2024:PHHC:046348 no prosecution witness has been examined as per learned counsel for the parties. Therefore, in the light of the aforesaid facts and circumstances, this Court will consider the effect of Section 37 of the NDPS Act in the present case. Although the recovery from the petitioner falls in the category of commercial category but it is not understandable as to why for 1 year and 10 months after the framing of the charges not even a single prosecution witness has been examined. A specific query was raised to the learned State counsel to know the reasons for the same to which after receiving instructions from the concerned officer who is present in the Court, he could not offer any justification.
6. Hon'ble Supreme Court in Satender Kumar Antil Versus Central Bureau of Investigation and another (Supra) has discussed this serious issue. 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 non-compliance 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 3 of 6 ::: Downloaded on - 09-04-2024 00:53:38 ::: Neutral Citation No:=2024:PHHC:046348 CRM-M-15637-2024(O&M) -4- 2024:PHHC:046348 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".
7. Hon'ble Supreme Court in Mohd. Muslim @ Hussain (Supra) has dealt with this issue. The relevant portion of the aforesaid judgment contained in para No.19 and 20 are reproduced as under:-
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.
8. Hon'ble Supreme Court in Dheeraj Kumar Shukla's case 4 of 6 ::: Downloaded on - 09-04-2024 00:53:38 ::: Neutral Citation No:=2024:PHHC:046348 CRM-M-15637-2024(O&M) -5- 2024:PHHC:046348 (supra) has observed as under:-
"3. It appears that some of the occupants of the 'Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed."
9. Hon'ble Supreme Court in Rabi Prakash Versus State of Odisha (Supra) 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.
10. One of the other co-accused namely, Gagandeep Singh @ Gagan, although may not be at parity with the present petitioner so far as the criminal antecedents are concerned but with regard to the stage of the trial, the petitioner will be certainly at parity with the aforesaid co-accused 5 of 6 ::: Downloaded on - 09-04-2024 00:53:38 ::: Neutral Citation No:=2024:PHHC:046348 CRM-M-15637-2024(O&M) -6- 2024:PHHC:046348 namely, Gagandeep Singh @ Gagan since even till date not even a single prosecution witness has been examined.
11. After hearing the learned counsel for the parties, this Court is of the view that considering the judgments of the Hon'ble Supreme Court as aforesaid and considering the fact that the petitioner is in custody for 2 years, 5 months and 4 days and the stage of the trial whereby about 1 year and 10 months have elapsed after the framing of the charges but not even a single prosecution witness has been examined, the bar contained under Section 37 of the NDPS Act will not apply to the petitioner in the light of Article 21 of the Constitution of India.
12. Therefore, considering the totality and circumstances of the present case, this Court deems it fit and proper to grant regular bail to the petitioner.
13. Consequently, the present petition is allowed. The petitioner shall be released on regular bail subject to furnishing bail bonds/surety to the satisfaction of the learned trial Court/Duty Magistrate concerned, if not required in any other case.
14. However, anything observed hereinabove shall not be treated as an expression of opinion on merits of the case and is meant for the purpose of deciding the present petition only.
77 05.04.2024 (JASGURPREET SINGH PURI) rakesh JUDGE Whether speaking : Yes/No Whether reportable : Yes/No 6 of 6 ::: Downloaded on - 09-04-2024 00:53:38 :::