Punjab-Haryana High Court
Ajay Masih @ Kalu vs State Of Punjab on 18 April, 2024
Neutral Citation No:=2024:PHHC:051924
CRM-M-1992-2024 -1-
2024:PHHC:051924
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
221/2 CRM-M-1992-2024
Date of Decision :April 18, 2024
AJAY MASIH ALIAS KALU .....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Krishan Singh Dadwal, Advocate
for the petitioner.
Mr.Raghav Garg, AAG, Punjab.
KULDEEP TIWARI. J.(Oral)
1. Through the instant petition, the petitioner craves for indulgence of this Court for his being enlarged on regular bail, in case FIR No.228, dated 09.10.2023, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and under Sections 148 and 149 of the IPC (Section 25 of the Arms Act, added later on), registered at Police Station Division No.8, Commissionerate, Jalandhar. ALLEGATIONS AGAINST THE PETITIONER
2. The case as set up by the prosecution agency, is that the petitioner, was driving a car, with the two other co-accused, namely- Vijay Masih, and Gagandeep Singh alias Baba, who were sitting besides him. During the search of the car, 2 kg. of opium wrapped in a black colour polythene, was recovered, which was kept under the seat of driver. All three persons were arreseted, and during investigation, present petitioner Ajay Masih and other co-accused Vijay Masih, suffered 1 of 8 ::: Downloaded on - 23-04-2024 00:45:47 ::: Neutral Citation No:=2024:PHHC:051924 CRM-M-1992-2024 -2- disclosure statement, and on the basis of that, recover of two country- made pistol, one desi katta (countrymade pistol), alongwith 20 cartridges of 32 bore were recovered, and thereupon, offence punishable under Sections 25/54/59 of the Arms Act, and under Sections 148 and 149 of the IPC, were added vide GD No.34, dated 12.10.2023.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. In asking for the relief of regular bail, learned counsel for the petitioner submits that the petitioner is not involved in any other criminal case under the NDPS Act.
4. He further submits that the recovery effected from the present petitioner is of 2 Kg. opium, which falls within the ambit of non- commercial quantity, and he has already suffered incarceration of more than 6 months.
5. He further submits that the co-accused-Gagandeep Singh alias Baba, who was also present in the car alongwith the present petitioner, has already been extended the benefit of regular bail by the learned trial Court concerned.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
6. Per contra, the learned State counsel opposes the asked for relief of grant of regular bail.
7. He has filed a short reply dated 18.04.2024, by way of an affidavit of Daman Bir Singh, ACP (North), Police Commissionerate, Jalandhar, and also the custody certificate qua the petitioner, today in Court, which are taken on record, with copies thereof supplied to learned 2 of 8 ::: Downloaded on - 23-04-2024 00:45:48 ::: Neutral Citation No:=2024:PHHC:051924 CRM-M-1992-2024 -3- counsel for the petitioner.
8. The custody certificate reflects that the petitioner has suffered incarceration of 6 months and 6 days as on today. However, the petitioner is shown to have been involved in 10 more criminal cases, but admittedly he is not involved in any other case under NDPS Act.
9. He further, on instructions imparted to him by the police official, submits that the final report has already been filed, and the charges have been framed on 23.01.2024, and out of total 14 prosecution witnesses cited by the prosecution, none has been examined so far. ANALYSIS
10. "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.
11. 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 3 of 8 ::: Downloaded on - 23-04-2024 00:45:48 ::: Neutral Citation No:=2024:PHHC:051924 CRM-M-1992-2024 -4- gravity of offence(s) involved.
12. 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 4 of 8 ::: Downloaded on - 23-04-2024 00:45:48 ::: Neutral Citation No:=2024:PHHC:051924 CRM-M-1992-2024 -5- 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 5 of 8 ::: Downloaded on - 23-04-2024 00:45:48 ::: Neutral Citation No:=2024:PHHC:051924 CRM-M-1992-2024 -6- 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."
13. 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 6 of 8 ::: Downloaded on - 23-04-2024 00:45:48 ::: Neutral Citation No:=2024:PHHC:051924 CRM-M-1992-2024 -7- 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.
14. 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.
FINAL ORDER
15. Considering the fact that the recovery of contraband effected from the present petitioner is of non-commercial quantity, and he has suffered incarceration of 6 months and 6 days, as on today, and he is not involved in any other criminal case under the NDPS act, coupled with the fact that the co-accused of the petitioner Gagandeep Singh alias Baba, has already been granted regular bail by the learned trial Court concerned, 7 of 8 ::: Downloaded on - 23-04-2024 00:45:48 ::: Neutral Citation No:=2024:PHHC:051924 CRM-M-1992-2024 -8- and further the conclusion of the trial will take long time and out of the total 14 prosecution witnesses, none has been examined till date, this Court deems it fit and appropriate to grant the concession of regular bail to the petitioner. 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.
16. 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)
April 18, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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