Punjab-Haryana High Court
Deep Singh Alias Babby vs State Of Haryana on 8 December, 2023
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2023:PHHC:157716
CRM-M-36447-2023 -1-
2023:PHHC:157716
220
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-36447-2023
Date of decision: 08.12.2023
DEEP SINGH ALIAS BABBY
...Petitioner
VERSUS
STATE OF HARYANA
...Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Puran Singh Hundal, Senior Advocate with
Mr. Gursahib Singh Hundal, Advocate and
Mr. Vikramjeet Singh, Advocate for the petitioner.
Mr. Vijesh Sharma, Addl. A.G., Haryana.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present is a third petition filed under Section 439 of the Code
of Criminal Procedure for the grant of regular bail to the petitioner in FIR
No.152 dated 21.04.2020, under Section 15 of the NDPS Act, registered at
Police Station City, Mandi Dabwali, Sirsa, District Sirsa, Haryana.
2. Learned Senior Advocate appearing on behalf of the petitioner
submitted that the petitioner is in custody from 27.03.2021, which is more than
2 years and 8 months. He further submitted that earlier charges in the present
case were framed on 08.10.2021 but thereafter, prosecution witnesses were not
examined and thereafter, again fresh charges were framed on 12.07.2023. He
also submitted that till date only 4 prosecution witnesses have been examined
and these prosecution witnesses are merely formal witnesses. He referred to the
names of the aforesaid formal witnesses by stating that first was ASI Ram
1 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
Niwas, who was only the scribe of the FIR; second was Constable Rahul
Kumar, who was to prove the report under Section 42 of the NDPS Act; third
was DSP Kuldeep Singh, who was only a witness to the inventory under
Section 52-A of the NDPS Act and fourth was one Ashok Kumar, Ahlmad, who
was a sample carrier. He further submitted that all the aforesaid four witnesses
are only formal witnesses and none of the material witnesses have been
examined and no person who was the part of the police party or recovery
witness has been examined in the present case and the petitioner had to face
incarceration for more than 2 years and 8 months. He further submitted that the
allegations against the petitioner are that when the police received secret
information, then the police recovered two cars, out of which one car was
Scorpio and another was Bolero and the car as so associated by the police with
the petitioner was the Scorpio bearing registration No.HR-24W-1171 from
where there was alleged recovery of 140 kgs. of poppy husk. He further
submitted that in fact the aforesaid Scorpio car had already been sold by the
petitioner through an affidavit much prior to the lodging of the FIR and has
referred to Annexure P-2 in this regard. He further submitted that although the
vehicle cannot be sold by way of an affidavit because it has to be done through
the registering authority by following a proper procedure but for the purpose of
considering the facts and circumstances of the present case, the possession of
the car etc. has to be seen. To substantiate his arguments, he referred to an order
passed by the learned trial Court dated 10.05.2023, wherein earlier one
application was filed by one Avtar Singh for release of the RC and the aforesaid
Avtar Singh is the person to whom the petitioner had sold the aforesaid Scorpio
car about 2 months prior to lodging of the present FIR. In the aforesaid order, it
2 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
has been so depicted that rather the petitioner had suffered a statement that he
had sold his Scorpio car to Avtar Singh and he has no objection in giving RC to
him and in this way, RC was released to the aforesaid Avtar Singh. He further
submitted that although it has come in the order of the learned trial Court that
the aforesaid registration number HR-24W-1171 is of a motorcycle but it
appears to be some typographical mistake as the registration number was that of
a car. He further submitted that in this way, it is clear that the petitioner was not
even having the possession of the said Scorpio car at the time of registration of
the FIR.
3. Learned Senior Advocate appearing on behalf of the petitioner
while further substantiating his arguments submitted that even after the framing
of the charges, no material witness has been examined and a perusal of the
orders passed by the learned trial Court after 12.07.2023 would show that
repeatedly bailable and non-bailable warrants were issued against the remaining
prosecution witnesses and even on one date, the concerned Drawing and
Disbursing Officer was also directed not to release the salary of one of the
prosecution witnesses till further orders and in this way, the witnesses who were
the material witnesses are deliberately not deposing before the Court because
the petitioner has been falsely implicated in the present case. He further
submitted that the bar contained under Section 37 of the NDPS Act will not
apply to the petitioner especially in view of the fact that there had been no
recovery of any contraband from the petitioner but was allegedly made from
aforesaid Scorpio car, which according to the police was owned by the
petitioner, whereas it was in fact sold to aforesaid Avtar Singh, which is so
reflected in the order dated 10.05.2023 passed by the learned trial Court. He has
3 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
referred to a judgment of the Hon'ble Supreme Court in Satender Kumar Antil
versus Central Bureau of Investigation and another, [2022 (10) SCC 51] and
contended that when there is a long custody, which is not attributable to the
accused and the delay has been caused by the prosecution, then Rights under
Article 21 of the Constitution of India are effected. He also referred to another
judgment of Hon'ble Supreme Court in "Mohd. Muslim @ Hussain versus
State (NCT of Delhi)", 2023 AIR (SC) 1648, wherein the scope of Section 37
of the NDPS Act vis-a-vis Article 21 of the Constitution of India has been
discussed by taking a serious view with regard to long trial. He further referred
to a judgment of Hon'ble Supreme Court in "Dheeraj Kumar Shukla versus
The State of Uttar Pradesh", 2023 SCC Online SC 918 and also a judgment of
Hon'ble Supreme Court in "Rabi Prakash versus The State of Odisha",
Special Leave to Appeal (Criminal) No.4169 of 2023 to contend that long
custody itself is a ground for grant of bail notwithstanding the bar contained
under Section 37 of the NDPS Act.
4. On the other hand, Mr. Vijesh Sharma, Addl. A.G., Haryana has
opposed the grant of regular bail to the petitioner on the ground that the
petitioner is involved in as many as 6 more cases, out of which 5 cases pertain
to the NDPS Act. He submitted that it is correct that the petitioner is in custody
from 27.03.2021, which is more than 2 years and 8 months and it is also correct
that now only 4 prosecution witnesses have been examined and none of the
witnesses, who were the part of the police party have been examined till date.
He further submitted that since the quantity recovered from the car of the
petitioner was 140 kgs. of poppy husk, the prayer of the petitioner for grant of
regular bail is hit by the bar contained under Section 37 of the NDPS Act. He
4 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
also submitted that from another car, which was standing nearby, there was a
recovery of 378 kgs. of poppy husk but as per the police, the aforesaid car did
not belong to the present petitioner but it was only the Scorpio car that belongs
to the petitioner from where 140 kgs. of poppy husk was recovered.
5. I have heard the learned counsel for the parties.
6. The petitioner is in custody from 27.03.2021, which is more than 2
years and 8 months. Earlier charges were framed on 08.10.2021 and thereafter,
fresh charges were framed on 12.07.2023. After the aforesaid date, repeatedly
bailable and non-bailable warrants were issued by the learned trial Court for the
purpose of deposition but as per the learned counsel for the parties, only 4
prosecution witnesses have been examined, who are stated to be not material
witnesses as has been described by the learned Senior Advocate for the
petitioner as aforesaid. Even at one stage, the learned trial Court directed the
concerned Drawing and Disbursing Officer not to release the salary of one of
the witnesses till further orders. On a query being raised to the learned State
counsel as to what was the justification as to why the learned trial Court was
constrained to issue bailable and non-bailable warrants against the prosecution
witnesses for deposition, to which he could not offer any explanation. The
argument which has been raised by the learned State counsel that the petitioner
is involved in 6 more cases, out of which 5 cases pertain to NDPS Act and
therefore, he is not entitled for the grant of regular bail is not sustainable in
view of the facts and circumstances of the present case and the custody of the
petitioner.
7. Hon'ble Supreme Court in Satender Kumar Antil's case (supra)
has discussed this serious issue with regard to delay in trial and its effect on the
5 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
Right to Life of an individual under Article 21 of the Constitution of India. Para
49 of the aforesaid judgment is reproduced as under:-
"49. 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".
8. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case
(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 under Section 37 of the NDPS
6 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
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
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 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
9. 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."
10. Recently, the Hon'ble Supreme Court in Rabi Prakash's case
(supra) has also discussed the effect of Section 37 of the NDPS Act in such like
cases of long custody. The relevant portion of the aforesaid judgment contained
in para No.4 is reproduced as under:-
"4. As regard to the twin conditions contained in Section 37
of the NDPS Act, learned counsel for the respondent - State
has been duly heard. Thus, the 1st condition stands complied
with. So far as the 2nd condition re: formation of opinion as
to whether there are reasonable grounds to believe that the
petitioner is not guilty, the same may not be formed at this
stage when he has already spent more than three and a half
years in custody. The prolonged incarceration, generally
militates against the most precious fundamental right
guaranteed under Article 21 of the Constitution and in such
a situation, the conditional liberty must override the
statutory embargo created under Section 37(1)(b)(ii) of the
NDPS Act."
8 of 9
Neutral Citation No:=2023:PHHC:157716
2023:PHHC:157716
11. After hearing learned counsel for the parties, this Court is of the
view that the petitioner is entitled for the grant of regular bail on the ground of
long custody of more than 2 years and 8 months considering the aforesaid
peculiar facts and circumstances of the present case where the material
prosecution witnesses are not coming forward for deposition despite repeated
bailable and non-bailable warrants being issued against them by the learned trial
Court.
12. Therefore, without commenting anything on the merits of the case,
this Court is of the view that the bar contained under Section 37 of the NDPS
Act will not apply to the present petitioner in the light of Article 21 of the
Constitution of India and also in the light of the aforesaid judgments of the
Hon'ble Supreme Court.
13. Consequently, the present petition is allowed. The petitioner shall
be released on regular bail, if not required in any other case, subject to
furnishing bail bonds/surety bonds to the satisfaction of the learned trial
Court/Duty Magistrate concerned.
14. 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)
08.12.2023 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2023:PHHC:157716
9 of 9
