Punjab-Haryana High Court
Mohit @ Dp @ Mohit Kukreja vs State Of Punjab on 25 January, 2023
CRM-M Nos. 50447 and 53554 of 2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
218+220 CRM-M- 50447 of 2022 (O&M)
Date of Decision:25.01.2023
Mohit @ DP @ Mohit Kukreja
....Petitioner
Versus
State of Punjab
.....Respondent
2) CRM-M-53554 of 2022
Sandeep Singh @ Saini
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Sandeep Sharma, Advocate,
for the petitioner in CRM-M-50447-2022.
Mr. Arjunveer Sharma, Advocate,
for the petitioner in CRM-M-53554 of 2022.
Ms. Akshita Chauhan, DAG, Punjab.
****
JASGURPREET SINGH PURI, J. (Oral)
Both the cases are taken up together for final disposal with the consent
of learned counsel for the parties as both arise out of the same FIR and the prayer
in both the cases is for the grant of regular bail in FIR No.0063 dated 04.06.2021,
under Sections 22, 25, 29, 61, 85 of the NDPS Act, registered at Police Station
Barnala, District Barnala.
CRM-M- 50447 of 2022 is the fourth successive bail petition which
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has been filed by the petitioner namely Mohit @ DP @ Mohit Kukreja whereas
CRM-M-53554 of 2022 is the third successive bail petition which has been filed
by the petitioner namely Sandeep Singh @ Saini.
Earlier both the petitioners had approached this Court for grant of
regular bail and in their first bail petitions, a detailed order was passed by this
Court while dismissing the bail petitions of both the petitioners and at that point of
time, the FIR was still at the investigation stage and that was one of the reasons for
dismissal of the bail petitions. Thereafter, another bail petition was filed which was
also dismissed and thereafter when the petitioner filed petition for bail, the same
was dismissed as withdrawn.
As per the prosecution story, the police had apprehended one
Amandeep Singh @ Tili and from him 2000 tablets of Tramadol were recovered
which constituted 711.82 grams which fell within the category of commercial
quantity. Thereafter, when the matter was investigated by the police, the name of
Mohit @ DP @ Mohit Kukreja (petitioner in CRM-M- 50447 of 2022) was
nominated on the basis of a second disclosure statement of a co-accused namely
Vinod Kumar whose name was also nominated earlier on the basis of disclosure
statement.
So far as the petitioner Sandeep Singh @ Saini (petitioner in CRM-M-
53554 of 2022) is concerned, his name was nominated on the basis of third
disclosure statement of Mohit @ DP @ Mohit Kukreja who is the present
petitioner in CRM-M-50447 of 2022.
From the aforesaid Mohit @ DP @ Mohit Kukreja, after his
nomination and the matter was investigated and further no recovery was effected
from him and he is also stated to be not involved in any other case and so far as the
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petitioner Sandeep Singh @ Saini is concerned, there was recovery of 72 tablets of
Tramadol from him and he is stated to be involved in one more case under the
NDPS Act.
Learned counsel for the petitioner has submitted that the petitioner
Mohit @ DP @ Mohit Kukreja (in CRM-M-50447 of 2022) is in custody from
09.08.2021 and the learned counsel for the petitioner has submitted that the
petitioner Sandeep Singh @ Saini (in CRM-M-53554 of 2022) is in custody from
05.08.2021 which is almost 1½ years. They have submitted that although the
present petitions are the successive bail petitions but considering the peculiar facts
and circumstances of the present case, they may be considered for the grant of
regular bail. Both the learned counsels have raised the following arguments:-
1) Both the petitioners have faced incarceration for about 1½ years and
both the petitioners have been nominated on the basis of disclosure statements and
that too second and third disclosure statements of the co-accused and from the
petitioner namely Mohit @ DP @ Mohit Kukreja there has been no recovery even
till date and from the petitioner Sandeep Singh @ Saini there had been alleged
recovery of 72 tablets of Tramadol. They submitted that the disclosure statement of
a co-accused per se is not admissble in evidence especially in view of the
judgment of the Hon'ble Supreme Court in Tofan Singh versus State of Tamil
Nadu 2021 (1) RCR (Criminal) 1 and since they have already faced incarceration
for about 1½ years, they deserve the concession of regular bail in view of the
aforesaid facts and circumstances.
2) The charges in the present case were framed by the learned trial Court
on 22.12.2021. Thereafter, about 13 adjournments have been granted by the
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learned trial Court and during the course of arguments, learned counsels have
supplied the photocopies of the zimni orders which have been passed by the
learned trial Court and the same are hereby taken on record as Mark-X. They have
submitted that a perusal of the aforesaid zimni orders after framing of the charges
by the learned trial Court would show that for six times bailable warrants have
been issued earlier to ASI Gurpal Singh and SI Baljeet Singh. For two times non-
bailable warrants have been issued against them by the learned trial Court and till
date no prosecution witness has been examined at all by the learned trial Court.
However, at one stage some of the prosecution witnesses have been given up by
the prosecution itself. They submitted that so far as SI Baljeet Singh is concerned,
he is the person who was the author of the FIR and who allegedly informed the
police station which culminated into lodging of the FIR and he is the person who is
the most material witness and against him number of times bailable warrants have
been issued by the learned trial Court. So far as the other material witness namely
ASI Gurpal Singh is concerned, he is the investigating officer in the present case
and qua him also about six times bailable warrants and thereafter two times non-
bailable warrants have been issued by the learned trial Court but for the reasons
best known to them, they did not choose to depose and come forward for deposing
before the learned trial Court. They have submitted that in fact both the petitioners
have been falsely implicated in the present case and the aforesaid conduct of the
police officials would show that in fact the petitioners have been falsely implicated
in the present case. Learned counsel further referred to a judgment of the Hon'ble
Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation
and another 2022 (10) SCC 51 to contend that repeated adjournments have been
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granted by the learned trial Court and the delay has been caused by the
prosecution itself and these aforesaid persons are the persons who are the official
witnesses and because of whom the criminal law was set into motion and there was
no justification for these officials to have absented themselves despite the fact that
at the initial stage they were served and consequently the learned trial Court was
constrained to issue repeated bailable warrants and non-bailable warrants against
them. They further submitted that the net result was that the petitioners had to face
incarceration for about 1½ years for no fault of their own.
On the other hand, Ms. Akshita Chauhan, learned DAG, Punjab has
submitted that it is correct that both the petitioners are in custody for about 1½
years and till date no prosecution witness has been examined. She further
submitted that one of the petitioner namely Sandeep Singh @ Saini is involved in
one more case under the NDPS Act and since the recovered quantity from the co-
accused Amandeep Singh @ Tili falls within the category of commercial quantity
and the prayer of the petitioner is hit by the bar contained under Section 37 of the
NDPS Act.
I have heard the learned counsel for the parties.
The period of custody of about 1½ years is not disputed by the learned
State counsel and it is also not in dispute that none of the witnesses have been
examined till date despite the fact that the charges in the present case were framed
on 22.12.2021 by the learned trial Court.
So far as the first argument raised by learned counsels for both the
petitioners is concerned, there is no dispute that the names of both the petitioners
were nominated on the basis of disclosure statements of the co-accused and
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therefore in the absence of any other co-relating factor as a link evidence, the
disclosure statements of the co-accused could not be per se admissible in evidence
in view of the ratio of the aforesaid judgment of the Hon'ble Supreme Court in
Tofan Singh's case (supra).
However, for the purpose of considering the prayer of both the
petitioners in both the petitions especially in the light of Section 37 of the NDPS
Act wherein a bar has been created, the conduct of the police officials has to be
considered in the light of the facts and circumstances as stated by learned counsel
for the petitioners and the photostat copies of the zimni orders which have been
supplied during the course of proceedings. A perusal of the aforesaid orders would
show that in fact these aforesaid two persons namely SI Baljeet Singh and ASI
Gurpal Singh were repeatedly summoned for about six times by way of bailable
warrants and two times by way of non-bailable warrants. ASI Gurpal Singh was
summoned right from the beginning whereas SI Baljeet Singh was summoned
thereafter, but the fact remains that there is no justification as to why the Court was
compelled to issue repeated warrants for their presence once the criminal law was
itself set into motion by those police officials. During the course of arguments, a
query was raised to learned State counsel as to what is the justification for the
same, she was not able to justify the same.
The Hon'ble Supreme Court in Satender Kumar Antil's case (supra)
discussed this serious issue in the light of Article 21 of the Constitution of India
and the relevant portion of para 40 of the aforesaid judgment is reproduced as
under:-
"40. Sub-section (1) mandates courts to continue the proceedings on
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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."
After hearing the learned counsel for the parties, this Court while
considering the prayer of the petitioner in the light of Section 37 of the NDPS Act,
is of the view that considering the aforesaid facts and circumstances, this Court
would draw an adverse inference against the prosecution and the facts and
circumstances would in fact lead this Court to have prima facie reasons to believe
at least at this stage that the petitioners are not guilty of the offence. So far as the
second ingredient for making a departure from the bar contained under Section 37
of the NDPS Act is concerned, it is not the case of the State nor it has been argued
by the learned State counsel that in case the petitioners are released on bail, then
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they may repeat the offence. Therefore, both the conditions for making a departure
from the bar contained under Section 37 of the NDPS Act remain satisfied.
Therefore, in view of the aforesaid totality of facts and circumstances,
this Court deems it fit and proper to grant the concession of regular bail to both the
petitioners. Consequently, both the petitions are allowed. The petitioners shall be
released on regular bail, if not required in other case, subject to furnishing bail
bonds/surety to the satisfaction of the learned trial Court/Duty Magistrate
concerned.
However, anything observed hereinabove shall not be treated as an
expression of opinion on merits of the case and is only meant for the purpose of
decision of these two petitions.
(JASGURPREET SINGH PURI)
JUDGE
January 25, 2023
dinesh
Whether speaking : Yes/No
Whether reportable : Yes/No
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