Punjab-Haryana High Court
Karan Kumar vs State Of Punjab on 8 December, 2023
Neutral Citation No:=2023:PHHC:157269
CRM-M-61080-2023 2023:PHHC:157269
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
208
CRM-M-61080-2023
Date of decision: 08.12.2023
KARAN KUMAR
....Petitioner
Versus
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Gaurav Jain, Advocate
for the petitioner.
Mr. Karunesh Kaushal, AAG, Punjab.
KULDEEP TIWARI. J.(Oral)
1. Through the instant petition, the petitioner craves for indulgence of this
Court for his being enlarged on regular bail, in case FIR No.363 dated 29.10.2023,
under Sections 18/29/61/85 of NDPS Act, 1985 and Sections 52-A and 42 of Prisons
Act, 1894 and Sections 420 and 120-B of IPC, registered at Police Station Tripuri,
District Patiala.
ALLEGATIONS AGAINST THE PETITIONER
2. It is not under dispute that the allegations qua the petitioner is not for
indulging in any kind of trade of narcotic substance(s). In fact, the allegations against
the petitioner are that he was working as salesman at Ashwin Mobiles Bhadson Road,
Patiala and sold a mobile phone without bill to main accused Jaskirat Singh, who
further sold it to one Jaspal Singh, who was a Constable and was posted on duty, in
the Central Jail, Patiala. The present petitioner, along with Jaskirat Singh and Jaspal
Singh, in connivance with each other, were indulging in business of sending mobile
phones to the Central Jail, Patiala by preparing incomplete bills.
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SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. The learned counsel for the petitioner, in his asking for the hereinabove
extracted relief, has made the following submissions:-
(i) No case of Narcotic Drugs and Psychotropic Substance, is made out
against the present petitioner;
(ii) so far as preparation of incomplete bills is concerned, no offence is
made out whatsoever, against the petitioner;
(iii) All the payments, which were made by Jaspal Singh, were made
online and were deposited in the account of owner of the said shop;
(iv) No recovery of any illegal substance has been made from the
petitioner.
(v) Petitioner is behind the bars since 31.10.2023.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. Per contra, the learned State counsel, who is in receipt of advance notice,
has placed on record the custody certificate of the petitioner, as issued by the Additional
Superintendent of Central Jail, Patiala. A perusal of the custody certificate reveals that
the petitioner has faced incarceration of about 01 month and 06 days, as on today and he
is not involved in any other case. Learned State counsel, on instructions from ASI
Kamaljit Singh, submits that investigation in the instant matter is still going.
ANALYSIS
5. "Bail is the Rule and Jail is an Exception". This basic principle of
criminal jurisprudence was laid down by the Hon'ble Supreme Court, way back in
1978, in its landmark judgment titled "State of Rajasthan V. Balchand alias
Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one of
the most distinguished fundamental rights, as enshrined in Article 21 of the
Constitution of India. Though the underlying objective behind detention of a person
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is to ensure easy availability of an accused for trial, without any inconvenience,
however, in case the presence of an accused can be secured otherwise, then detention
is not compulsory.
6. The right to a speedy trial is one of the rights of a detained person.
However, while deciding application for regular bail, the Courts shall also take into
consideration the fundamental precept of criminal jurisprudence, which is "the
presumption of innocence", besides the gravity of offence(s) involved.
7. In "Nikesh Tarachand Shah V. Union of India", (2018) 11 SCC 1, the
Hon'ble Supreme Court has recorded the following:-
"14. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 at 586-588, the purpose of granting bail is set out with great
felicity as follows:-
"27. It is not necessary to refer to decisions which deal with
the right to ordinary bail because that right does not furnish
an exact parallel to the right to anticipatory bail. It is,
however, interesting that as long back as in 1924 it was held
by the High Court of Calcutta in Nagendra v. King-Emperor
[AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that the object
of bail is to secure the attendance of the accused at the trial,
that the proper test to be applied in the solution of the
question whether bail should be granted or refused is
whether it is probable that the party will appear to take his
trial and that it is indisputable that bail is not to be withheld
as a punishment. In two other cases which, significantly, are
the 'Meerut Conspiracy cases' observations are to be found
regarding the right to bail which deserve a special mention.
In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ
94] it was observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code, that it
conferred upon the Sessions Judge or the High Court wide
powers to grant bail which were not handicapped by the
restrictions in the preceding Section 497 which corresponds
to the present Section 437. It was observed by the court that
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there was no hard and fast rule and no inflexible principle
governing the exercise of the discretion conferred by Section
498 and that the only principle which was established was
that the discretion should be exercised judiciously. In
Emperor v. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ
1271] it was said that it was very unwise to make an attempt
to lay down any particular rules which will bind the High
Court, having regard to the fact that the legislature itself left
the discretion of the court unfettered. According to the High
Court, the variety of cases that may arise from time to time
cannot be safely classified and it is dangerous to make an
attempt to classify the cases and to say that in particular
classes a bail may be granted but not in other classes. It was
observed that the principle to be deduced from the various
sections in the Criminal Procedure Code was that grant of
bail is the rule and refusal is the exception. An accused
person who enjoys freedom is in a much better position to
look after his case and to properly defend himself than if he
were in custody. As a presumably innocent person he is
therefore entitled to freedom and every opportunity to look
after his own case. A presumably innocent person must have
his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in
Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 :
1978 SCC (Cri) 115] that: (SCC p. 242, para 1)
"... the issue of bail is one of liberty, justice, public safety
and burden of the public treasury, all of which insist that a
developed jurisprudence of bail is integral to a socially
sensitized judicial process. . . . After all, personal liberty of
an accused or convict is fundamental, suffering lawful
eclipse only in terms of procedure established by law. The
last four words of Article 21 are the life of that human
right."
29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1
SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J.,
who spoke for the court, that: (SCC p. 129, para 29)
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"There cannot be an inexorable formula in the matter of
granting bail. The facts and circumstances of each case will
govern the exercise of judicial discretion in granting or
cancelling bail."
30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806, para
39), it is stated:
"Where the granting of bail lies within the discretion of the
court, the granting or denial is regulated, to a large extent,
by the facts and circumstances of each particular case. Since
the object of the detention or imprisonment of the accused is
to secure his appearance and submission to the jurisdiction
and the judgment of the court, the primary inquiry is whether
a recognizance or bond would effect that end."
It is thus clear that the question whether to grant bail or not
depends for its answer upon a variety of circumstances, the
cumulative effect of which must enter into the judicial verdict. Any
one single circumstance cannot be treated as of universal validity
or as necessarily justifying the grant or refusal of bail."
8. Also, in Siddharam Satlingappa Mhetre v. State of Maharashtra,
Criminal Appeal No.2271 of 2010, the Hon'ble Supreme Court has insisted upon
striking a perfect balance of sanctity of an individual's liberty as well as the interest
of the society, in grant or refusing bail. The relevant extract of the judgment (supra) is
reproduced hereinafter:-
3. The society has a vital interest in grant or refusal of bail because
every criminal offence is the offence against the State. The order
granting or refusing bail must reflect perfect balance between the
conflicting interests, namely, sanctity of individual liberty and the
interest of the society. The law of bails dovetails two conflicting
interests namely, on the one hand, the requirements of shielding the
society from the hazards of those committing crimes and potentiality
of repeating the same crime while on bail and on the other hand
absolute adherence of the fundamental principle of criminal
jurisprudence regarding presumption of innocence of an accused
until he is found guilty and the sanctity of individual liberty.
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9. This Court has examined the instant petition on the touchstone of the
hereinabove extracted settled legal principle(s) of law and is of the considered
opinion that the instant petition is amenable for being allowed.
10. The reason for forming the above inference emanates from the factum
that:- (i) There is no allegation against the petitioner that he is involved in trade of
contrabands, and the only allegation against the petitioner is that of supplying mobile
phones, that too through incomplete bills; (ii) Investigation of the present case is at its
initial stage and no further recovery is to be effected from the present petitioner; (iii) no
fruitful purpose would be served by keeping the petitioner behind the bars, who has
undergone actual custody of about 1 month and 06 days, as on today.
FINAL ORDER
11. Considering the hereinabove made discussion, this Court deems it
appropriate to grant the concession of regular bail to the petitioner. Therefore, without
commenting upon the merits and circumstances of the present case, the present petition
is allowed. The petitioner is ordered to be released on bail on furnishing of bail bond
and surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial
Court/Duty Magistrate.
12. However, anything observed here-in-above shall have no effect on the
merits of the trial and is meant for deciding the present petition only.
13. All pending application(s) stand disposed of accordingly.
(KULDEEP TIWARI)
08.12.2023 JUDGE
amandeep
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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