Punjab-Haryana High Court

Bhuvana Banjara vs State Of Punjab on 20 December, 2023

                                                       Neutral Citation No:=2023:PHHC:163866




                                                           2023:PHHC:163866
CRM-M-56804-2023                                                  -1-

       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

213                                                       CRM-M-56804-2023
                                          Date of Decision : December 20, 2023

BHUVANA BANJARA                                                      .....Petitioner
                                     VERSUS
STATE OF PUNJAB                                                    .....Respondent

CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI

Present :   Mr.G.S.Sandhu, Advocate for the petitioner.

            Mr. Karunesh Kaushal, AAG, Punjab.

KULDEEP TIWARI. J.(Oral)

1. Through the instant petition filed under Section 439 Cr.P.C.

the petitioner prays for grant of regular bail in case FIR No.64 dated

27.3.2023, Under Section 18(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985, registered at Police Station Lambi, District Sri

Muktsar Sahib.

ALLEGATIONS AGAINST THE PETITIONER

2. The allegations against the present petitioner that he was

found carrying 1 kg opium and he was arrested from the spot.

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) The alleged recovered contraband falls within the category of intermediate quantity, therefore, the bar contained under Section 37 of the Act is not applicable.;

(ii) The petitioner has suffered incarceration for

1 of 7

Neutral Citation No:=2023:PHHC:163866

2023:PHHC:163866

about 7 months in the instant FIR.;

(iii) Though the petitioner is involved in one more case under NDPS Act but in that case he has already completed his sentence.

SUBMISSIONS OF THE LEARNED STATE COUNSEL

4. Per contra, the learned State counsel opposed the asked for

relief and placed on record the custody certificate. The same is taken on

record. The custody certificate makes revelations that the petitioner has

faced incarceration for 6 months and 24 days as on today. He further

submits that the final report qua the petitioner was filed way back on

25.5.2023 and the charges were framed on 7.8.2023. He further submits

that the prosecution has cited a total of 19 witnesses, but none of them

have been examined so far.

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 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

2 of 7

Neutral Citation No:=2023:PHHC:163866

2023:PHHC:163866

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 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

3 of 7

Neutral Citation No:=2023:PHHC:163866

2023:PHHC:163866

restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that 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

4 of 7

Neutral Citation No:=2023:PHHC:163866

2023:PHHC:163866

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) "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

5 of 7

Neutral Citation No:=2023:PHHC:163866

2023:PHHC:163866

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.

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) The alleged recovered contraband falls within the

category of intermediate quantity, therefore, the bar contained under

Section 37 of the Act is not applicable (ii) The petitioner has suffered

6 of 7

Neutral Citation No:=2023:PHHC:163866

2023:PHHC:163866

incarceration for about 7 months in the instant FIR (iii) Though the

petitioner is involved in one more case under NDPS Act but in that case

he has already completed the sentence awarded to him.

FINAL ORDER

11. Considering that the trial will take long time to conclude and

the instant recovery from the present petitioner falls under non-

commercial quantity and has already faced incarceration for about 7

months, 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, it is clarified that if in future, the petitioner is

found indulging in commission of similar offences, as are involved

herein, the respondent-State shall be at liberty to make an appropriate

application seeking cancellation of regular bail, as granted by this Court.

Moreover, anything observed here-in-above shall have no effect on the

merits of the trial and is meant for deciding the present petition only.





                                           (KULDEEP TIWARI)
December 20, 2023                               JUDGE
ajay-1
          Whether speaking/reasoned.            :       Yes/No
          Whether Reportable.                   :       Yes/No

Neutral Citation No:=2023:PHHC:163866

7 of 7