Punjab-Haryana High Court
James O' Igwi vs State Of Punjab on 25 May, 2021
CRM-M No.41964 of 2020 (O & M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
118 CRM-M No.41964 of 2020 (O & M)
Date of decision:25.05.2021
James O' Igwi ... Petitioner
Vs.
State of Punjab ... Respondent
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present: Mr. Arjun Veer Sharma, Advocate for the petitioner.
Mr. Saurav Khurana, DAG, Punjab.
***
SUVIR SEHGAL J. (ORAL)
The Court has been convened through video conferencing due
to Covid-19 pandemic.
CRM-14898-2021
For the reasons given in the application, it is allowed. Hearing
of the main petition is preponed to today and is ordered to be taken on
Board.
Main Case
Vide the instant petition filed under Section 439 of the Code of
Criminal Procedure, the petitioner seeks grant of regular bail in FIR No.109,
dated 29.03.2017 registered under Sections 21, 22 and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985, (for short "the NDPS
Act") registered at Police Station Zirakpur, District Sahibzada Ajit Singh
Nagar, Mohali, Annexure P-1.
As per the version of the prosecution, Munish Kumar @ Monu
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was apprehended by the police with 18 grams of intoxicating powder
which he was carrying in a bag. During investigation, he named the
petitioner as the person from whom he had purchased the contraband. On
the basis of his statement, the police arrested the petitioner from New
Delhi on 31.03.2017 and recovered 190 grams of Cocaine and 300 grams
of Heroin from him.
Counsel for the petitioner has contended that the raiding party
conducted the search of the petitioner at an area beyond their jurisdiction
and failed to comply with the provisions of Section 166 of the Code of
Criminal Procedure. He urges that at the time when the recovery was
allegedly effected, no independent witness was present and the
mandatory provisions of the NDPS Act have been violated. According to
the counsel, after the presentation of the challan and framing of the
charges, one Anita Rani, who was aggrieved of victimization by the
police, approached this court seeking fair investigation while levelling
serious allegations against the police and this Court vide order dated
16.10.2018, Annexure P-2, passed in CRWP-975-2017 ordered that
further proceedings pursuant to FIR, Annexure P-1, and another FIR be
stayed. Counsel submits that the petition is pending for 26.08.2021 and
the stay order continues till date. He asserts that the petitioner is not
involved in any other case under the provisions of the NDPS Act, though
he has been falsely named in two criminal cases for allegedly having
committed jail offences. He submits that the investigation qua the
petitioner is complete, challan has been presented, charge has been
framed, prosecution evidence is underway and there is no possibility of
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the trial coming to a conclusion in the near future.
Opposing the petition, State counsel upon instructions from
HAC Gulab Singh, submits that the petitioner is a citizen of Nigeria and
it has been noticed that when foreign nationals are released on bail they
invariably abscond or go underground, which hampers the trial. It is his
argument that the drugs recovered from the petitioner fall within the
ambit of commercial quantity and the bar as contained in Section 37 of
the NDPS Act is attracted. As per his instructions, the challan was
presented on 26.09.2017, charge was framed on 02.01.2018, though he
could not deny the fact that the trial has been stayed by this Court.
I have considered the rival submissions of the parties.
Hon'ble Supreme Court in Union of India vs. K.A. Najeeb,
2021 SCC Online SC 50 has held that once timely trial is not found to
be possible, Court is obligated to enlarge the accused on bail. It is held as
under:-
"13. Even in the case of special
legislations like the Terrorist and Disruptive
Activities (Prevention) Act, 1987 or the Narcotic
Drugs and Psychotropic Substances Act, 1985
("NDPS") which too have somewhat rigorous
conditions for grant of bail, this Court in Paramjit
Singh v. State (NCT of Delhi), (1999) 9 SCC 252,
Babba alias Shankar Raghuman Rohida v. State of
Maharashtra, (2005) 11 SCC 569 and Umarmia
alias Mamumia v. State of Gujarat, (2017) 2 SCC
731 enlarged the accused on bail when they had
been in jail for an extended period of time with little
possibility of early completion of trial. The
constitutionality of harsh conditions for bail in such
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special enactments, has thus been primarily justified
on the touchstone of speedy trials to ensure the
protection of innocent civilians.
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16. This Court has clarified in numerous
judgments that the liberty guaranteed by Part III of
the Constitution would cover within its protective
ambit not only due procedure and fairness but also
access to justice and a speedy trial. In Supreme
Court Legal Aid Committee Representing Undertrial
Prisoners v. Union of India, (1994) 6 SCC 731, it
was held that undertrials cannot indefinitely be
detained pending trial. Ideally, no person ought to
suffer adverse consequences of his acts unless the
same is established before a neutral arbiter.
However, owing to the practicalities or real life
where to secure an effective trial and to ameliorate
the risk to society in case a potential criminal is left
at large pending trial, Courts are tasked with
deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely
trial would not be possible and the accused has
suffered incarceration for a significant period of
time, Courts would ordinarily be obligated to
enlarge them on bail."
Facts of the present case deserve to be examined in the
backdrop of the observations of the Hon'ble Apex Court. The trial of the
present FIR has been stayed by this Court in a writ petition, which is
pending and the interim order is continuing. At one stage, by order dated
17.12.2020, the instant petition was directed to be taken up with the said
petition, however, the same could not be done due to the restrictive
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functioning of the Court because of the spread of the pandemic and there
does not seem to be any possibility in the immediate future of the
resumption of the trial.
As per the custody certificate, which is on record, the
petitioner has been in custody as an accused from 06.04.2017 to
10.06.2019 and from 21.06.2019 onwards. The charges in the trial were
framed in January, 2018 and some of the witnesses have been examined
by the prosecution but as the trial is not likely to conclude soon, the
petitioner continues to be behind bars.
Coming to the submission of the State regarding the petitioner
being a foreign national, suffice it to notice that the Hon'ble Supreme
Court in Lachhman Dass vs. Resham Chand Kaler and another 2018
(3) SCC 187 has held that "the law under Section 439 of Cr.P.C., 1973,
is very clear and in the eyes of the law every accused is the same
irrespective of their nationality." To allay the apprehension expressed by
the State counsel, this Court is of the view that stringent conditions can
be imposed while releasing the petitioner on bail.
Keeping in view the above facts and circumstances, period of
incarceration of the petitioner, which by now is more than four years and
one month and the fact that the trial is not likely to come to an end in the
near future, the petitioner is ordered to be released on bail on his
furnishing heavy bail/ surety bonds to the satisfaction of the concerned
Trial Court/Duty Magistrate.
Besides the above, this Court deems it appropriate to impose
the following additional conditions:-
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(i) the petitioner shall report at the police
station concerned twice every month i.e. on the Ist
and 3rd Monday of each month at 11 am;
(ii) the petitioner shall give his residential
address alongwith his proof of actual stay and his
mobile number to the SHO of the concerned police
station, who shall make random calls to the
petitioner and keep a tab on his whereabouts;
(iii) the petitioner shall surrender his
passport with the trial court, in case he has not
already done so;
(iv) the petitioner shall remain present
before the trial court on each and every date of
hearing and shall duly co-operate with the court
during the course of the trial;
(v) that the petitioner shall furnish an
undertaking that henceforth he will not indulge in
any criminal activity.
In case of violation of any of the above conditions, it shall be
open to the trial court to seek cancellation of the bail.
It is clarified that any observation made hereinabove shall
construed to be an expression of opinion on the merits of the case.
25.05.2021 (SUVIR SEHGAL)
sheetal JUDGE
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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