Punjab-Haryana High Court
Ravinder Kumar @ Rawinder Kumar @ ... vs State Of Punjab on 3 July, 2023
Neutral Citation No:=2023:PHHC:083301
CRM-M-8054-2023 (O&M) -1- 2023:PHHC:083301
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-8054-2023 (O&M)
Date of Decision: 03.07.2023
Ravinder Kumar @ Rawinder Kumar @ Sonu
....Petitioner(s)
Versus
State of Punjab
.....Respondent(s)
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Vipin Mahajan, Advocate, for the petitioner.
Mr. Rajiv Verma, DAG, Punjab.
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JASGURPREET SINGH PURI, J. (Oral)
1. The present is a second petition filed under Section 439 of the
Code of Criminal Procedure for grant of regular bail to the petitioner in FIR
No. 157 dated 23.08.2021, under Sections 22, 22(b), 29 of NDPS Act,
registered at Police Station City Gurdaspur, District Gurdaspur, Punjab.
2. It has been submitted by the learned counsel for the petitioner that
the petitioner is in custody for about 18 months and the petitioner is having
clean antecedents and he is not involved in any other case. He submitted that
in the present case the allegation against the petitioner was with regard to
alleged recovery of 15 grams of Etizolam which although falls in the category
of commercial quantity under the NDPS Act but in the facts and circumstances
of the present case the bar contained under Section 37 of the NDPS Act will
not apply to the petitioner especially considering the long custody of the
petitioner and his antecedents. He further submitted that the learned trial Court
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framed the charges in the present case on 15.02.2022 and about 1 year and 5
months have elapsed but not even a single witness has been examined. During
the course of arguments the learned counsel for the petitioner also supplied
the photostat copies of the interlocatory orders passed by the learned trial
Judge. The photostat copies of the aforesaid interlocatory orders are taken on
record as Mark-X. While referrring to the aforesaid orders, he submitted that
after the framing of the charges the trial Court adjourned the case for about 18
times. Although for some time the learned Presiding Officer was not holding
Court because he was under suspension but the fact remains that right from
the beginning the prosecution witnesses were being summoned. He further
referred to order dated 11.07.2022 passed by learned trial Court whereby one
PW namely Ashwani Kumar was served but thereafter he did not come present
despite the fact that he was summoned and on 27.09.2022 he was bound down
for the next date and all the remaining witnesses were also summoned but
thereafter even till date no prosecution witness has been examined. He further
submitted that it is a case where the petitioner has been falsely implicated and
that is the reason as to why the prosecution witnesses are not appearing to
depose before the learned trial Court for about 1 ½ years after the framing of
the charges.
3. Learned counsel has also 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 also in in Mohd. Muslim
@ Hussain Versus State (NCT of Delhi) [2023 AIR (SC) 1648] to contend that
when the trial Court adjourns the cases from time to time then it affects the
rights of the accused persons and the present petitioner has faced long
incarceration of 1 ½ years for no fault of his and there is no justification as to
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why the prosecution witnesses did not care to appear despite the fact that
some of them were served at initial stages. He further submitted that even on
many dates the petitioner was not produced before the learned trial Court.
4. The learned counsel also submitted that even otherwise also there
was a violation of Section 50 of the NDPS Act and has also referred to consent
memo Annexure P-2 to contend that the offer which was given was a defective
offer since the petitioner was not apprised of his right of being searched in
the presence of a Magistrate or a Gazetted Officer but he was only offered to
be searched from a Magistrate or a Gazetted Officer. He referred to a judgment
of the Hon'ble Supreme Court in Nirmal Singh Pehlwan @ Nimma Versus
Inspector, Customs, Customs House, Punjab, 2012(1) SCC (Cri.) 555 in
support of his contentions.
5. On the other hand, Mr. Rajiv Verma, learned DAG, Punjab has
submitted that so far as the custody period of the petitioner is concerned, the
same is not in dispute and it is also correct that the petitioner is not involved in
any other case. He has however opposed the grant of regular bail to the
petitioner on the ground that the recovery from the petitioner was 15 grams of
Etizolam which falls in the category of commercial quantity and therefore the
prayer of the petitioner is hit by the bar contained under Section 37 of the
NDPS Act since the prescribed quantity is 2.5 grams under the schedule of the
NDPS Act.
6. I have heard the learned counsel for the parties.
7. The petitioner has already faced incarceration for about 1 ½
years. The charges were framed on 15.02.2022 which is almost 1 year and 5
months but no prosecution witness has been examined till date. The matter was
adjourned by the learned trial Court for about 18 times. Some of the
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prosecution witnesses were served at initial stages but they also did not care to
depose before the learned trial Court. During the course of arguments a
specific query was raised to the learned State counsel as to what was the
justification as to why the prosecution witnesses did not care to depose
before the trial Court to which after seeking instructions from ASI Nirmal
Singh, he could not justify the same. The petitioner is stated to be having
clean antecedents and not involved in any other case. Hon'ble Supreme Court
in Satender Kumar Antil Versus Central Bureau of Investigation and
another (Supra) has discussed this issue of repeated adjournments and the
scope of Article 21 of the Constitution of India. 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 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
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occasioned due to no fault of his own".
8. Recently also the Hon'ble Supreme Court in Mohd. Muslim @
Hussain (Supra) has dealt with the issue pertaining to delay in the trial vis-
a-vis bar contained under Section 37 of the NDPS Act. The relevant portion
of the aforesaid judgment contained in para No.19 and 20 are produced 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.
9. In the facts and circumstances of the present case no justification
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has come forth as to why after about 1 ½ years after the framing of the charges
that no prosecution witness has been examined till date. The petitioner is not at
fault for the delay of the trial. The petitioner having clean antecedents had to
face incarceration for 1 ½ years due to delay on the part of the prosecution.
Therefore after considering the totality and circumstances of the present case,
this Court deems it fit and proper to grant regular bail to the petitioner
especially in the light of Article 21 of the Constitution of India. In the facts
and circumstances of the present case and in view of the judgments in Satender
Kumar Antil (Supra) and Mohd. Muslim @ Hussain (Supra), the bar
contained under Section 37 of the NDPS Act will not apply in the present case.
10. 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, if not
required in any other case.
11. However, anything observed hereinabove shall not be treated as an
expression of opinion on merits of the case and is meant for the purpose of
deciding the present petition only.
03.07.2023 (JASGURPREET SINGH PURI)
rakesh JUDGE
Whether speaking : Yes/No
Whether reportable : Yes/No
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