Punjab-Haryana High Court
Jasvir Kaur vs State Of Punjab on 24 October, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:140130
CRM-M-51902-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
232 CRM-M-51902-2024
DATE OF DECISION: 24.10.2024
JASVIR KAUR ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. P.S. Sekhon, Advocate for the petitioner(s).
Mr. J.S. Rattu, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought The jurisdiction of this Court under Section 439 Cr.P.C., has been invoked seeking the concession of regular bail for the petitioner in FIR No.112 dated 20.07.2023, under Sections 22 of the NDPS Act, registered at Police Station Dhanaula, District Barnala.
2. Prosecution story set up in the present case as per the version in the FIR read as under :-
'Copy ruqa, Officer in charge PS Dhanaula, today I SI/SHO along with ASI Jasvir Singh 120, SC Jagdeep Singh 569, SLC Veerpal Kaur 946, SLC Amarjeet Kaur 939, Ct Gulkaranpreet Singh 792 and PHG Ajit Singh 47904 with laptop, printer and investigation kit on Govt vehicle numbered PB-65BA- 8124 driven by Ct Tejinderjit Singh 1017 for the purpose of patrolling and checking of suspicious persons and vehicles were present at Bhikhi T-point Dhanaula. At around 04.00PM one special secret informer came and gave an information to I SI/SHO that Lalli Singh s/o Bhola Singh, Jasvir Kaur w/o Dogar Singh, Shinder Kaur w/o Gobind Singh and Fambo w/o Rohi Singh all r/o backside Ram 1 of 7 ::: Downloaded on - 29-10-2024 22:50:40 ::: Neutral Citation No:=2024:PHHC:140130 CRM-M-51902-2024 2 Bagh Barnala do the business of selling intoxicating tablets on foot. Today also they are seen on foot in the area of grain market Dhanaula for selling the intoxicating tablets. If they will be searched in the area of Grain market Dhanaula then they can be apprehended along with heavy quantity of intoxicating tablets. The information is true and reliable. Therefore, the act of Lalli Singh s/o Bhola Singh, Jasvir Kaur w/o Dogar Singh, Shinder Kaur w/o Gobind Singh and Fambo w/o Rohi Singh all r/o backside Ram Bagh Barnala of selling the intoxicating tablets makes out 22/61/85 NDPS Act. Therefore, an offence u/s a ruqa for the registration of a case against Lalli Singh s/o Bhola Singh, Jasvir Kaur w/o Dogar Singh, Shinder Kaur w/o Gobind Singh and Fambo w/o Rohi Singh all 1/0 backside Ram Bagh Barnala is being sent to PS by hand PHG Ajit Singh 47904 after typing and after taking its print out. After the registration the number of the case shall be informed. Control room Barnala shall be informed. I SI/SHO along with fellow officials am leaving in the search of accused to Grain market Dhanaula. At Bhikhi T-point Dhanaula at 04.25PM SD/ Lakhwinder Singh SI/SHO PS Dhanaula date 20.07.2023.'
3. Contentions On behalf of the petitioner Learned counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case and as per the allegations, 1000 yellow colour loose tablets were recovered from the polythene which the petition was carrying in her hand but no test was conducted at the spot with drug identification kit, therefore, the version of the prosecution that tables were 'Etozolam' cannot be believed. He has placed reliance upon the report received from RTFSL, Bathinda whereby the sample was sent for chemical examination which revealed that the alleged tablets were recovered from co-accused-Laali Singh and not from 2 of 7 ::: Downloaded on - 29-10-2024 22:50:41 ::: Neutral Citation No:=2024:PHHC:140130 CRM-M-51902-2024 3 the possession of the present petitioner. He has further submitted that co- accused-Sinder Kaur has already been granted concession of regular bail by this Court vide order dated 01.10.2024 passed in CRM-M-48156-2024 and no fruitful purpose would be served by keeping the petitioner behind the bars as conclusion of trial would take long time as out of total 9 Prosecution Witnesses, only 2 PWs have been examined so far after framing of charges on 18.05.2024.
On behalf of the State On the other hand, learned State Counsel appearing on advance notice, accepts notice on behalf of respondent-State and has filed the custody certificate of the petitioner, which is taken on record. According to which, the petitioner is behind bars for 1 year, 3 months and 2 days.
Learned State Counsel on instructions from the Investigating Officer opposes the prayer for grant of regular bail stating that the petitioner is involved in other FIRs also, meaning thereby she is a habitual offender but is not in a position to controvert the submissions made by counsel for the petitioner. He informs the Court that in the present FIR challan stands presented on 06.01.2024 and charges stands framed on 18.05.2024.
4. Analysis From the above case it can be culled out that the petitioner has already suffered sufficient incarceration i.e. 1 year, 3 months and 2 days, similarly situated co-accused has already been granted concession of bail by this Court, recovery is effected from co-accused Laali Singh and as per the principle of the criminal jurisprudence, no one should be considered guilty, till the guilt is proved beyond reasonable doubt, whereas in the 3 of 7 ::: Downloaded on - 29-10-2024 22:50:41 ::: Neutral Citation No:=2024:PHHC:140130 CRM-M-51902-2024 4 instant case, challan stands presented on 06.01.2024 and charges stands framed on 18.05.2024, out of 9 prosecution witnesses, only 2 PWs have been examined so far which is sufficient for this Court to infer that the conclusion of trial is likely to take considerable time and detaining the petitioner behind the bars for an indefinite period would solve no purpose.
Reliance can be placed upon the judgment of the Apex Court rendered in "Dataram versus State of Uttar Pradesh and another", 2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of bail is a general rule and putting persons in jail or in prison or in correction home is an exception. Relevant paras of the said judgment is reproduced as under:-
"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
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4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609 5 of 7 ::: Downloaded on - 29-10-2024 22:50:41 ::: Neutral Citation No:=2024:PHHC:140130 CRM-M-51902-2024 6 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."
Therefore, to elucidate further, this Court is conscious of the fundamental principle of law that right to speedy trial is a part of reasonable, fair and just procedure enshrined under Article 21 of the Constitution of India. This constitutional right cannot be denied to the accused as is the mandate of the Apex court in "Hussainara Khatoon and ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction period of the under-trials should be as short as possible keeping in view the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
As far as the pendency of other cases and involvement of the petitioner in other cases is concerned, reliance can be placed upon the order of this Court rendered in CRM-M-25914-2022 titled as 6 of 7 ::: Downloaded on - 29-10-2024 22:50:41 ::: Neutral Citation No:=2024:PHHC:140130 CRM-M-51902-2024 7 "Baljinder Singh alias Rock vs. State of Punjab" decided on 02.03.2023, wherein, while referring Article 21 of the Constitution of India, this Court has held that no doubt, at the time of granting bail, the criminal antecedents of the petitioner are to be looked into but at the same time it is equally true that the appreciation of evidence during the course of trial has to be looked into with reference to the evidence in that case alone and not with respect to the evidence in the other pending cases. In such eventuality, strict adherence to the rule of denial of bail on account of pendency of other cases/convictions in all probability would land the petitioner in a situation of denial of the concession of bail.
5. Decision:
In view of the aforesaid discussions made hereinabove, the petitioner is directed to be released on regular bail on her furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate, concerned.
However, it is made clear that anything stated hereinabove shall not be construed as an expression of opinion on the merits of the case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
24.10.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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