Punjab-Haryana High Court
Sonu Singh vs State Of Punjab on 3 July, 2023
Neutral Citation No:=2023:PHHC:082762
CRM-M-43422 of 2022 -1- 2023:PHHC:082762
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
208 CRM-M-43422 of 2022
Date of Decision:03.07.2023
Sonu Singh
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
****
Present: Mr. Atul Kaushik, Advocate,
for the petitioner.
Mr. Sarabjit Singh Cheema, DAG, Punjab
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present is a second petition filed under Section 439 of the Code of
Criminal Procedure for the grant of regular bail to the petitioner in FIR No.0192
dated 04.10.2019, under Section 22 of the NDPS Act, registered at Police Station
Kotwali Bathinda, District Bathinda.
2. It is submitted by learned counsel for the petitioner that the petitioner
is in custody from 04.10.2019 which is almost 3 years and 9 months. He submitted
that it is a case where the petitioner has clean antecedents and is not involved in
any other case and he has been falsely implicated in the present case by the police
due to political enmity. He further submitted that the charges in the present case
were framed on 07.03.2020 which is almost 3 years and 3 months and for about 23
times the case was adjourned for summoning of the prosecution witnesses but they
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did not choose to appear and rather for two times the learned trial Court was
constrained to issue bailable warrants against the prosecution witnesses. He
submitted that now only two prosecution witnesses have been examined who are
none others but those witnesses who had only carried samples from one office to
another office but no prosecution witness who is the material witness has been
examined. None of the witnesses who were the part of the police party have been
examined. After framing of the charges, the official witnesses did not choose to
appear before the learned trial Court for more than three years which shows that
the petitioner has been falsely implicated in the present case. He submitted that in
view of the aforesaid position, the bar contained under Section 37 of the NDPS Act
will not apply in the present case. Learned counsel has also 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 and also latest judgment of the
Hon'ble Supreme Court in Mohd Muslim @ Hussain versus State (NCT of
Delhi) 2023 AIR (SCC) 1648 and contended that the petitioner is entitled for the
grant of regular bail under Article 21 of the Constitution of India.
3. On the other hand, Mr. Sarabjit Singh Cheema, learned DAG, Punjab
has submitted that so far as the custody period of the petitioner is concerned, the
same is correct and the petitioner is in custody for about three years and nine
months. He submitted that there had been a recovery of 9 kgs. and 605 grams of
Tramadol and 864 grams of Alprazolam from the petitioner which falls in the
category of commercial quantity and therefore the petitioner is not entitled for the
grant of regular bail. He further submitted that so far as the antecedents of the
petitioner is concerned, he is not involved in any other case as per the instructions
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received from ASI Jaswinder Singh.
4. I have heard learned counsel for the parties.
5. The total incarceration of the petitioner is about three years and nine
months and the charges were framed about three years and three months ago but
only two prosecution witnesses have been examined and that too are those persons
who had carried samples from one office to another office but none of the
prosecution witnesses who are allegedly part of the police party or any recovery
witness, if any, have been examined despite the fact that the learned trial Court had
to adjourn the case for about 23 times and was also constrained to issue bailable
warrants against the prosecution witnesses twice.
6. On a query being raised to learned State counsel during the course of
arguments as to what was the justification for the prosecution witnesses for not
having deposed before the Court for more than three years and three months after
the framing of the charges, to which, on instructions from ASI Jaswinder Singh,
submitted that there is no justification with regard to the same.
7. The Hon'ble Supreme Court in Satender Kumar Antil's case (supra)
has dealt with the issue with regard to the repeated adjournments and its effect
upon the Fundamental Rights of the accused. 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 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
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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. In a recent judgment of the Hon'ble Supreme Court in Mohd Muslim
@ Hussain versus State (NCT of Delhi) (supra) the Hon'ble Supreme Court again
reiterated that the delayed trial and the long custody is a factor which can be
considered for grant of bail given peculiar facts and circumstances of each and
every case. The relevant portion of the aforesaid judgment is 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.
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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 Malik19). 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 19 (2009) 2 SCC 624 14 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."
9. Considering the totality of the facts and circumstances of the present
case wherein the petitioner has already faced incarceration for about three years
and nine months and is not involved in any other case, the bar contained under
Section 37 of the NDPS Act will not apply in the present case. In the light of
Article 21 of the Constitution of India, this Court is of the view that the petitioner
deserves the concession of regular bail. Consequently, the present petition is
allowed. The petitioner shall be released on regular bail subject to furnishing bail
bonds/surety to the satisfaction of the learned trial Court/Duty Magistrate
concerned.
10. At this stage it is pertinent to note that in a large number of cases the
prosecution witnesses fail to depose before the Court for a long period of time and
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for which there is no justification. In the absence of any justification in the present
case, for not deposing for more than three years, the Senior Superintendent of
Police, Bathinda is directed to look into the matter and also apprise the DGP with
regard to the state of affairs and in case it is so required to take appropriate action
in accordance with law.
11. 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 the present petition.
(JASGURPREET SINGH PURI)
JUDGE
July 03, 2023
dinesh
Whether speaking : Yes/No
Whether reportable : Yes/No
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