Surinder Singh @ Sonu vs State Of Punjab
2022 Latest Caselaw 17265 P&H

CRM-M-43396-2022 (O&M)                               -1-


                          255
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                              CRM-M-43396-2022 (O&M)
                                               Date of Decision: 20.12.2022

Surinder Singh @ Sonu

                                                               ....Petitioner(s)
                                    Versus

State of Punjab

                                                             .....Respondent(s)


CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:    Mr. Ashish Bakshi, Advocate, for the petitioner.

            Mr. Kunal Vinayak, AAG, Punjab.

                         ****

JASGURPREET SINGH PURI, J. (Oral)

The present is a second petition filed under Section 439 of the

Code of Criminal Procedure for the grant of regular bail to the petitioner in

FIR No. 220 dated 26.12.2017, under Sections 18/61/85 of NDPS Act (Section

29 of NDPS Act and Section 473 IPC added later on), registered at Police

Station Dehlon, Ludhiana.

It has been submitted by the learned counsel for the petitioner

that the petitioner is in custody for about 8 months. He submitted that it is a

case where an FIR was lodged on the basis of apprehension of three co-

accused namely, Santosh Kumar, Ravi Kumar and Davinder Singh @ Bunty

from whom there was a recovery of 1 kg. of opium by way of a chance

recovery. He submitted that the present petitioner is the brother-in-law of

the co-accused Davinder Singh @ Bunty and no recovery has been effected

1 of 7

CRM-M-43396-2022 (O&M) -2-

from the petitioner and disclosure statement of a co-accused is not

admissible in evidence per se in view of the law laid down by the Hon'ble

Supreme Court in Tofan Singh V/s. State of Tamil Nadu [2021 (1) RCR

(Criminal) 1]. He submitted that no other sufficient material is available with

the prosecution to connect the petitioner with the offence except for the

disclosure statement. He submitted that the petitioner was earlier granted

bail by the learned trial Court and he had been regularly appearing before

the Court but thereafter there was a miscommunication by his counsel to

the petitioner that an exemption application would be filed for the purpose

of seeking exemption on the ground that the father of the petitioner was not

keeping good health and was suffering from multiple ailments and it was

because of that miscommunication from the counsel that he could not

appear and ultimately he was declared as a proclaimed offender on

16.09.2019. He further submitted that thereafter he had filed a petition

before this Court challenging the order of declaring the petitioner as a

proclaimed offender in which the petitioner had stated that he was ready to

surrender before the learned trial Court and file application for regular bail

but again there was no communication from his counsel and consequently,

counsel for the petitioner had made a statement before this Court that he

could not get instructions from the petitioner and it was because of that

reason that the petition was dismissed by this Court on 13.05.2022 in CRM-

M-53213-2021. He submitted that after inquiring the position from the

counsel he immediately filed an application before the learned trial Court

for surrendering and rather after a period of only 15 days i.e. on

28.05.2022 his application for surrendering was allowed by the trial Court

2 of 7

CRM-M-43396-2022 (O&M) -3-

and he was taken into custody. He submitted that the bona fide of the

petitioner could not be doubted in view of the aforesaid facts and

circumstances since immediately on the dismissal of the aforesaid

petition, he moved an application for surrender and thereafter, he had

surrendered before the learned trial Court.

Learned counsel has submitted that even otherwise also the

petitioner is not a habitual offender and he is involved in only one case

under Section 420 IPC and there is no other case against him under the

NDPS Act. He submitted that apart from the above, the charges in the

present case were framed on 16.09.2019 and it is about 3 years and 3

months that even a single witness has not been examined by the prosecution,

although trial against the other co-accused is proceeding which shows that

the petitioner has been falsely implicated in the present case. He further

submitted that the mere fact that the earlier petitioner was declared as a

proclaimed offender but thereafter he has surrendered on his own cannot

disentitle the petitioner for grant of regular bail and it would not mean that

the petitioner should be kept in custody for indefinite period especially in

view of the fact that for more than 3 years after the framing of the charges

not even a single witness has been examined.

On the other hand, Mr. Kunal Vinayak, learned Assistant

Advocate General, Punjab while referring to the affidavit filed by the State

submitted that it is correct that the petitioner has faced incarceration for

about 8 months. He has also submitted that it is correct that on the

application filed by the petitioner, he had surrendered on 28.05.2022 and

from thereafter as well he is in custody. He further submitted that it is also

3 of 7

CRM-M-43396-2022 (O&M) -4-

correct that no recovery was effected from the petitioner either from the

spot where the other three co-accused were apprehended and even thereafter

as well and that the name of the petitioner has been nominated on the basis

of disclosure statement of a co-accused.

On a query being raised to the learned State counsel as to

whether there was any sufficient material available with the police to

connect the petitioner with the recovery from the other three co-accused

apart from the disclosure statement of a co-accused, he after seeking

instructions from HC Gurmeet Singh who is present in the Court stated that

no such material was available in this regard. He has however opposed the

grant of regular bail to the petitioner on the ground that earlier he was

declared as a proclaimed offender and there are chances that he may

abscond again.

I have heard the learned counsel for the parties.

It is a case where the name of the petitioner was nominated only

on the basis of disclosure statement of a co-accused. As per the learned State

counsel or even as per reply, no sufficient material is available with the

police to connect the petitioner with the present offence except for the

disclosure statement of a co-accused. It is a settled law that the disclosure

statement of a co-accused is not admissible in evidence per se unless there

is any other link evidence in this regard but nothing has come up either in

the arguments raised by the learned State counsel or in the affidavit filed by

State with regard to the same and therefore, the case of the prosecution

stands only on the strength of disclosure statement of one of the co-accused

who is stated to be the brother-in-law of the petitioner.

                                    4 of 7

 CRM-M-43396-2022 (O&M)                                  -5-

The charges in the present case are stated to have been framed

by the learned Judge, Special Court on 16.09.2019 which is more than

three years but as per the learned counsel for the parties, not even a single

witness has been examined. This also shows the conduct of the prosecution

as to what was preventing them from deposing before the Court and

therefore, this Court would certainly draw an adverse inference against the

prosecution in this regard especially keeping in view the judgment of the

Hon'ble Supreme Court in Satender Kumar Antil Versus Central Bureau

of Investigation and another [ 2022 (10) SCC 51]. Para 40 of the aforesaid is

reproduced as under:-

"40. 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 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".

                                   5 of 7

 CRM-M-43396-2022 (O&M)                               -6-

So far as the objection raised by the learned State counsel that

the petitioner was earlier declared as a proclaimed offender and therefore, he

is not entitled for the grant of regular bail is concerned, the factual position

in the aforesaid case would show that earlier the petitioner was granted bail

by the learned trial Court but thereafter he had absented himself and was

declared as a proclaimed offender in the year 2019. An explanation has

been given by the learned counsel for the petitioner that the reason for the

same was miscommunication with the counsel that exemption application

had been filed and the petitioner could not appear also because of the

multiple ailments of his age old father. Be that as it may, the petitioner

had chosen to file a petition before this Court seeking quashing of the order

by which he was declared as a proclaimed offender in which he had

undertaken to surrender but again due to miscommunication with the

counsel the said petition was dismissed on 13.05.2022 only on the ground

that the learned counsel for the petitioner was not able to get instructions

from his client. Thereafter, immediately the petitioner filed application

before the learned trial Court for surrender and in 15 days time he himself

surrendered before the learned trial Court by filing an application and

therefore, he is in custody. There is no occasion for this Court to presume

any lack of bona fide on the part of the petitioner. The totality of the facts

and circumstances with regard to the present offence and the role of the

petitioner would suggest that a mere fact that the petitioner was declared as

a proclaimed offender and thereafter, he surrendered cannot disentitle the

petitioner for being considered for grant of regular bail because an accused

cannot be deprived of his freedom only on the ground that earlier he was

6 of 7

CRM-M-43396-2022 (O&M) -7-

declared as a proclaimed offender and he had surrendered because no

accused can be kept in custody for indefinite period. Apart from the above,

it is very surprising to note that for more than three years after the framing

of charges no prosecution witness has been examined and therefore, this

Court would certainly draw an adverse inference against the prosecution in

this regard. In addition to the above, the petitioner was nominated on the

basis of disclosure statement of a co-accused which is not admissible in

evidence per se in view of the law laid down by the Hon'ble Supreme Court

in Tofan Singh V/s. State of Tamil Nadu (Supra) and even as per the

learned State counsel, there is no other material available to connect the

petitioner with the present offence apart from disclosure statement. The

alleged recovery from the co-accused was also of 1 Kgs. of opium which

does not fall in the category of commercial quantity and the petitioner is not

a habitual offender.

In view of the aforesaid facts and circumstances, this Court

deems it fit and proper to grant regular bail to the petitioner.

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.

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.

20.12.2022                                    (JASGURPREET SINGH PURI)
rakesh                                               JUDGE
         Whether speaking                     :   Yes/No
         Whether reportable                   :   Yes/No



                                     7 of 7