Punjab-Haryana High Court
Jasbir vs State Of Haryana on 15 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:049692
CRM-M-7051-2024(O&M) -1- 2024:PHHC:049692
211
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-7051-2024((O&M)
Date of Decision: 15.04.2024
Jasbir
....Petitioner
Versus
State of Haryana
.....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Shailender Kashyap, Advocate with
Mr. Parshant Sethi, Advocate, for the petitioner.
Mr. Samarth Sagar, Additional Advocate General, Haryana.
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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.351 dated 17.05.2022, under Sections 20C, 29 of NDPS Act, registered at Police Station Hansi City, District Hisar, Haryana.
2. Learned counsel for the petitioner has submitted that the petitioner is in custody for 1 year and 10 months and he is having clean antecedents and is not involved in any other case. He submitted that the allegations against the petitioner were that he was sitting on the rear seat of the sedan car from where inside of the diggy was not visible and there had been recovery of about 1 quintal of ganja from the diggy of the car and the petitioner was in fact only a passenger. He submitted that the charges in the present case were framed on 17.01.2023 which is almost 1 year and 3 1 of 6 ::: Downloaded on - 17-04-2024 00:57:06 ::: Neutral Citation No:=2024:PHHC:049692 CRM-M-7051-2024(O&M) -2- 2024:PHHC:049692 months ago and till date no prosecution witness has been examined and the trial has been delayed at the instance of the prosecution with the result that the petitioner had to face incarceration for 1 year and 10 months. He submitted that since there had been no recovery from the person of the petitioner, the bar contained under Section 37 of the NDPS Act will not apply to the present petitioner. He also submitted that since the delay in the trial has not been attributable to the petitioner and the same is attributable to the prosecution witnesses, 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 will be applicable to the present case and therefore, the petitioner may be considered for the grant of regular bail.
4. On the other hand, Mr. Samarth Sagar, learned Additional Advocate General, Haryana has submitted that so far as the custody of the petitioner is concerned, the same is correct and it is also correct that the petitioner is having clean antecedents and he is not involved in any other case. He also submitted that the petitioner was sitting on the rear seat and there had been a recovery of about 1 quintal of ganja from the diggy of a Verna car. He has however opposed the grant of bail to the petitioner on the ground that since the recovery falls in the category of commercial quantity, the prayer of the petitioner is hit by the bar contained under Section 37 of the NDPS Act. He also submitted that the charges in the present case were framed on 17.01.2023 which is almost 1 year and 3 months ago but till date 2 of 6 ::: Downloaded on - 17-04-2024 00:57:06 ::: Neutral Citation No:=2024:PHHC:049692 CRM-M-7051-2024(O&M) -3- 2024:PHHC:049692 no prosecution witness has been examined.
5. I have heard the learned counsels for the parties.
6. It is a case where the petitioner has already faced incarceration for 1 year and 10 months and the charges in the present case were framed on 17.01.2023 which is almost 1 year and 3 months ago but till date no prosecution witness has been examined, as per learned counsel for the parties. The petitioner is stated to be not involved in any other case and is having clean antecedents and the recovery was from the diggy of a Verna car. So far as the present petitioner is concerned, he was sitting on the rear seat and he was not even the driver of the car.
7. 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 3 of 6 ::: Downloaded on - 17-04-2024 00:57:06 ::: Neutral Citation No:=2024:PHHC:049692 CRM-M-7051-2024(O&M) -4- 2024:PHHC:049692 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".
8. 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.
9. Hon'ble Supreme Court in Dheeraj Kumar Shukla's case 4 of 6 ::: Downloaded on - 17-04-2024 00:57:06 ::: Neutral Citation No:=2024:PHHC:049692 CRM-M-7051-2024(O&M) -5- 2024:PHHC:049692 (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."
10. 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.
11. After hearing the learned counsels for the parties, this Court is of the view that considering the judgments of the Hon'ble Supreme Court as aforesaid and considering the custody of the petitioner, his antecedents and the stage of the trial whereby about 1 year and 3 months have elapsed after 5 of 6 ::: Downloaded on - 17-04-2024 00:57:06 ::: Neutral Citation No:=2024:PHHC:049692 CRM-M-7051-2024(O&M) -6- 2024:PHHC:049692 the framing of the charges but no prosecution witness has been examined, the bar contained under Section 37 of the NDPS Act will not apply to the petitioner especially considering the fact that there was no recovery from the person of the petitioner and also in the light of Article 21 of the Constitution of India.
12. Therefore, considering the totality of facts 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 15.04.2024 (JASGURPREET SINGH PURI) rakesh JUDGE Whether speaking : Yes/No Whether reportable : Yes/No 6 of 6 ::: Downloaded on - 17-04-2024 00:57:06 :::