Punjab-Haryana High Court
Harpreet Singh Alias Kala vs State Of Punjab on 25 August, 2023
Neutral Citation No:=2023:PHHC:112035
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-33364-2022 (O&M)
Date of decision: 25.08.2023
HARPREET SINGH ALIAS KALA
...Petitioner
VERSUS
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. G. S. Sandhu, Advocate
for the petitioner.
Mr. Sarabjit Singh Cheema, DAG, Punjab.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present petition has been filed under Section 439 of the Code
of Criminal Procedure for the grant of regular bail to the petitioner in FIR
No.113 dated 21.05.2022, under Section 22(c) of the NDPS Act, registered at
Police Station Lambi, District Sri Muktsar Sahib, Punjab.
2. Learned counsel for the petitioner has submitted that the petitioner
has been falsely implicated in the present case and he has no criminal
background and he is not involved in any other case. He further submitted that
the petitioner is in custody from 21.05.2022, which is almost 1 year and 3
months and charges in the present case were framed on 22.02.2023 and almost
six months have elapsed and not even a single prosecution witness has been
examined till date. He further submitted that the alleged recovery shown in the
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present case qua the petitioner and other co-accused, namely, Jagmit Singh @
Jugnu was 285.450 grams of Tramadol and the commercial quantity is fixed at
250 grams under the NDPS Act and therefore the quantity is marginally higher
than the commercial quantity. He further submitted that even as per the
prosecution story and the FIR itself, there was no recovery effected from the
conscious possession of the petitioner and as per the FIR, two persons sitting
near a canal were counting some tablets which were scattered on the floor and
on looking at the police party, they tried to flee. He further submitted that
although notice under Section 50 of the NDPS Act was given but it has been
shown that the petitioner has given his consent of waiver that he does not wish
to get himself searched from a Gazetted Officer or a Magistrate. He further
submitted that it was a pre-planned effort on the part of the police because of
political rivalry and the bar contained under Section 37 of the NDPS Act will
not apply to the present petitioner particularly in view of the fact that there was
no recovery effected from the conscious possession of the petitioner even as per
the prosecution and also in view of the fact that the petitioner has no criminal
background apart from the fact that his custody is about 1 year and 3 months
and till date no prosecution witness has been examined after the framing of the
charges. He referred to the judgments of Hon'ble Supreme Court in
"Mohd. Muslim @ Hussain versus State (NCT of Delhi)", 2023 AIR(SC)
1648 and Special Leave to Appeal (Criminal) No.6690 of 2022 titled as
"Dheeraj Kumar Shukla versus The State of Uttar Pradesh" in this regard.
3. On the other hand, Mr. Sarabjit Singh Cheema, DAG, Punjab has
submitted that it is correct that the petitioner is in custody for about 1 year and 3
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months and after the framing of charges on 22.02.2023, no prosecution witness
has been examined till date. He further, on instructions from SI Ravinder Singh,
has submitted that the petitioner has no criminal background and he is not
involved in any other case. He has however opposed the grant of regular bail to
the petitioner on the ground that since the recovery from the petitioner and other
co-accused was 285.450 grams of Tramadol, which falls in the category of
commercial quantity and even if it is marginally higher, the prayer of the
petitioner is hit by the bar contained under Section 37 of the NDPS Act. He
further submitted that even if the tablets were found on the ground and not from
the person of the petitioner, still it cannot be said that there was no recovery
from the petitioner.
4. I have heard the learned counsel for the parties.
5. It is a case where the petitioner is in custody from 21.05.2022,
which is about 1 year and 3 months and there was alleged recovery of 285.450
grams of Tramadol from the polythene bag, which contained tablets which were
lying near the petitioner and the other co-accused as aforesaid, who on seeing
the police party tried to flee. So far as the plea made by learned counsel for the
petitioner there was no recovery effected from the conscious possession of the
petitioner and the plea taken by the learned State counsel that the petitioner
cannot be granted the concession of regular bail on the ground that he was in
conscious possession of contraband, this Court does not wish to go into the
aforesaid merits with regard to the same but this Court would certainly consider
the criminal antecedents of the petitioner, whereby admittedly the petitioner is
not involved in any other case and his custody is already about 1 year and 3
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months but despite the framing of charges on 22.02.2023, no prosecution
witness has been examined till date.
6. The Hon'ble Supreme Court in "Mohd. Muslim @ Hussain's
casse (supra) has dealt with this issue with regard to delay in trial and long
custody of the accused person vis-a-vis the bar contained Section 37 of the
NDPS Act. The relevant portion of the aforesaid judgment contained in para
Nos.19 and 20 are reproduced 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
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.
20. The standard to be considered therefore, is one, where
the court would look at the material in a broad manner, and
reasonably see whether the accused's guilt may be proved.
The judgments of this court have, therefore, emphasized that
the satisfaction which courts are expected to record, i.e., that
the accused may not be guilty, is only prima facie, based on
a reasonable reading, which does not call for meticulous
examination of the materials collected during investigation
(as held in Union of India v. Rattan Malik). Grant of bail on
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ground of undue delay in trial, cannot be said to be fettered
by Section 37 of the Act, given the imperative of Section
436A which is applicable to offences under the NDPS Act
too (ref. Satender Kumar Antil supra). Having regard to
these factors the court is of the opinion that in the facts of
this case, the appellant deserves to be enlarged on bail.
7. The Hon'ble Supreme Court in "Dheeraj Kumar Shukla's case
(supra) has observed as under:-
"3. It appears that some of the occupants of the 'Honda
City' Car including Praveen Maurya @ Puneet Maurya
have since been released on regular bail. It is true that the
quantity recovered from the petitioner is commercial in
nature and the provisions of Section 37 of the Act may
ordinarily be attracted. However, in the absence of criminal
antecedents and the fact that the petitioner is in custody for
the last two and a half years, we are satisfied that the
conditions of Section 37 of the Act can be dispensed with at
this stage, more so when the trial is yet to commence though
the charges have been framed."
8. Therefore, considering the aforesaid totality and circumstances of
the case where the alleged recovery in the present case was 285.450 grams of
Tramadol from two persons and that too from the floor from allegedly there was
a recovery and considering the fact that the petitioner has no criminal
background, the custody of about 1 year and 3 months would be a relevant
factor for the purpose of considering the prayer of the petitioner for grant of
regular bail in the light of Article 21 of the Constitution of India. This Court is
of the view that the bar contained under Section 37 of the NDPS Act will not
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apply to the present petitioner and he is entitled for the grant of regular bail in
the light of Article 21 of the Constitution of India.
9. Consequently, the present petition is allowed. The petitioner shall
be released on regular bail subject to furnishing bail bonds/surety bonds to the
satisfaction of the learned trial Court/Duty Magistrate concerned.
10. However, anything observed hereinabove shall not be treated as an
expression of opinion on the merits of the case and is meant for the purpose of
deciding the present petition only.
(JASGURPREET SINGH PURI)
25.08.2023 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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