Punjab-Haryana High Court
Balraj Singh Alias Raju vs State Of Punjab on 24 April, 2023
Neutral Citation No:=2023:PHHC:057366
CRM-M-8146-2023 1
2023:PHHC:057366
209 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-8146-2023
Date of decision : 24.04.2023
Balraj Singh @ Raju .....Petitioner
versus
State of Punjab ..... Respondent
CORAM : HON'BLE MR. JUSTICE RAJESH BHARDWAJ
***
Present :- Mr. R. Kartikeya, Advocate
for the petitioner.
Mr. Karunesh Kaushal, AAG, Punjab.
***
RAJESH BHARDWAJ, J. (Oral)
Prayer in the present petition is for grant of regular bail to the
petitioner in case FIR No.43 dated 25.07.2015, under Sections 21, 29 of
the NDPS Act, Section 473 of the IPC (added later on) at Police Station
Sarai Amanat Khan, Amritsar City.
As per facts of the case on 25.07.2015 when the police party
was on patrolling duty, they stopped two young persons coming on the
motorcycle. On enquiry, they disclosed their name as Rajvir Singh @
Raju and Dilbagh Singh @ Bagha. The bags were slung on their
shoulders. On seeing the police, they got perplexed. However, they were
stopped by the police party. They were asked about the kit (bag) being
carried by them on their shoulders. They were suspected to be carrying
narcotic and thus, were given offer for their search before any Gazetted
Officer or Magistrate. On their consent, search of the bags were carried
out in front of the Gazetted Officer and recovery of 6 kg of heroin from
each bag being carried by them was effected i.e. in all 12 kgs of heroin
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was recovered. As the contraband being 12 kgs was without any license,
the FIR was registered and investigation commenced. During
investigation, both the arrested accused namely, Dilbagh Singh @ Bagha
and Rajvir Singh @ Raju made disclosure statement about the petitioner
Balraj Singh @ Raju; his brother Harpal Singh @ Palla and mother
Rajwant Kaur regarding their complicity in the present case. The
petitioner was already in jail in some other cases and his custody was
taken on production warrant. He was taken to his home from where on his
disclosure another 6 kgs Heroin was recovered from his home. Thus, total
18 kgs of Heroin was allegedly recovered in the present FIR. The
petitioner was arrested in this case on 16.09.2016. Petitioner has earlier
approached this Court by way of filing petitions i.e. CRM-M-25820-2017
which was allowed to be withdrawn on 06.02.2018 and CRM-M-42708-
2020 withdrawn on 25.10.2021. Thereafter, he approached the Court of
learned Additional Sessions Judge, Tarn Taran praying for grant of bail.
However, learned Additional Sessions Judge after hearing counsel for the
parties, declined the same vide order dated 22.12.2022. Hence the
petitioner has approached this Court by way of filing 3rd present petition.
Learned counsel for the petitioner has vehemently contended
that petitioner is behind bars in the present case since the date of his arrest
i.e. 16.09.2016. He has submitted that at the time of occurrence,
petitioner was in custody in some other case. He has submitted that
recovery of 12 kgs Heroin was effected from the co-accused namely
Dilbagh Singh @ Bagha and Rajvir Singh @ Raju who were arrested on
spot. It is a bare disclosure on the basis of which petitioner was involved
in the present case. He submits that the case was foisted on the petitioner
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and his brother and mother in a clandestine manner and recovery of
another 6 kg of Heroin was shown to be effected from his home on his
disclosure statement. It is submitted that as the petitioner is involved in
other cases of similar nature, he was deliberately implicated in the present
case by the police. He submits that both the co-accused who were arrested
on spot and from whom recovery of 12 kg of Heroin was effected have
been granted bail by this Court. Not only this, his brother Harpal Singh
and mother Rajwant Kaur had already been granted bail by this Court. He
submits that petitioner has completed custody of more than 06 years in
the present case and till date prosecution has not been able to conclude
the trial. He has vehemently argued before this Court that dehors the
merits of the case, every accused has a fundamental right of speedy trial
which is hopelessly defeated in the present case. He relies upon the
judgment of the Hon'ble Supreme Court titled as Mohd Muslim @
Hussain Vs. State (NCT of Delhi), 2023 LiveLaw(SC)260 and has
submitted that even if provisions of Section 37 of NDPS Act are
applicable in the case of commercial quantity, petitioner deserves to be
granted bail as per the law settled.
Learned State counsel, on the other hand, has opposed the
submissions made by counsel for the petitioner. He, on instructions from
ASI Sukhdev Singh, has submitted that petitioner is a habitual offender.
He submits that though petitioner was in custody, however, his custody
was taken on production warrant and he was taken to his home. He
submits that on his disclosure, another 6 kgs of Heroin was recovered
from his home. He further on instructions has submitted that co-accused
have been granted bail by this Court. He has submitted that out of 23
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prosecution witnesses till date, only 09 witnesses have been examined by
the prosecution. He submits that the petitioner is facing prosecution in 07
other cases.
I have heard counsel for the parties and perused the record.
Evidently, petitioner is behind bars since 16.09.2016. At the
time of occurrence, he was admittedly behind bars. His complicity in this
case was found on the basis of disclosure statement made by the
co-accused namely, Dilbagh Singh @ Bagha and Rajvir Singh @ Raju
who were arrested on spot. On production warrant, petitioner was taken
from the jail to his home and on his disclosure, recovery of 6 kg of Heroin
was effected from his home. As submitted before this Court, all the co-
accused in this case have already been granted bail by this Court.
Needless to say that the petitioner has a right of speedy trial. Petitioner is
behind bars since last more than 06 years and till date the prosecution has
not been able to examine even half of the witnesses. As held by the
Hon'ble Supreme Court in Mohd Muslim @ Hussain's case (supra), this
Court is of the opinion that the case of the petitioner is covered by the
ratio laid down by the Hon'ble Supreme Court. In the abovesaid case
Hon'ble Supreme Court expressed its views 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
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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.
21 .....it would be important to reflect that laws which
impose stringent conditions for grant of bail, may be
necessary in public interest; yet, if trials are not concluded in
time, the injustice wrecked on the individual is immeasurable.
23. There is a further danger of the prisoner turning to crime,
"as crime not only turns admirable, but the more
professional the crime, more honour is paid to the criminal"22
(also see Donald Clemmer's 'The Prison Community'
published in 194023). Incarceration has further deleterious
effects - where the accused belongs to the weakest economic
strata: immediate loss of livelihood, and in several cases,
scattering of families as well as loss of family bonds and
alienation from society. The courts therefore, have to be
sensitive to these aspects (because in the event of an
acquittal, the loss to the accused is irreparable), and ensure
that trials - especially in cases, where special laws enact
stringent provisions, are taken up and concluded speedily.'
The veracity of the allegations would be assessed only after
the conclusion of the trial and on the appreciation of evidence to be led by
both the parties before the trial Court. This Court would refrain itself
from commenting anything on the merits of the case. The trial of the case
will take sufficiently long time. However, keeping in view the long
custody of the petitioner and the bail having been granted to the co-
accused, and also the observation made by Hon'ble Supreme Court in
abovesaid case to the effect that 'grant of bail on ground of undue delay in
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trial is not fettered by Section 37', this Court finds that the petitioner
deserves to be granted bail. Accordingly, the present petition is allowed
and the petitioner is ordered to be released on bail on his furnishing
bail/surety bonds to the satisfaction of the concerned trial Court/Duty
Magistrate. Nothing said herein shall be treated as an expression of
opinion on the merits of the case.
( RAJESH BHARDWAJ )
24.04.2023 JUDGE
m. sharma
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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