Mahavir Singh vs State Of Punjab
2023 Latest Caselaw 19726 P&H

                                                           Neutral Citation No:=2023:PHHC:144723




CRM-M No.46549 of 2023                   1            2023:PHHC:144723

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                         AT CHANDIGARH

208                               CRM-M No.46549 of 2023
                                  Date of Decision : November 15, 2023

MAHAVIR SINGH                                                -Petitioner
                                       V/S
STATE OF PUNJAB                                              -Respondent

CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI

Present :     Mr. S.K. Arya,, Advocate
              for the petitioner.

              Mr. Karunesh Kaushal, A.A.G, Punjab.

                                         ***

KULDEEP TIWARI, J.(ORAL)

[1] Through the instant petition, as instituted under Section 439 of

the Cr.P.C, the petitioner seeks the concession of his being enlarged on regular

bail, in case FIR No.117 dated 18.07.2023, under Sections 21/29 of the

N.D.P.S. Act, 1985, registered at Police Station Gharinda, District Amritsar.

[2] The allegation against the petitioner is that he was arrested while

being in possession of 100 grams of heroin. During investigation, the

petitioner suffered a disclosure statement, whereupon, one Gurbhej Singh

Bajwa was also nominated as an accused, under Section 29 of the N.D.P.S.

Act vide Rapat No.29 dated 20.07.2023, from whom, the petitioner had

allegedly purchased the allegedly recovered heroin for further sale.

[3] Learned counsel for the petitioner has submitted that the

petitioner has been behind the bars since 18.07.2023 and he is a first offender.

He has further submitted that the co-accused, who has been arrayed as an

accused in the instant FIR on the disclosure statement of the petitioner, has

been granted relief of anticipatory bail by this Court vide order dated

17.10.2023 passed in CRM-M No.43587 of 2023.

[4] Learned State counsel has placed on record a custody certificate,

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as issued by the Superintendent of Central Jail, Amritsar, according to which,

the petitioner has undergone 3 months and 26 days as on 14.11.2023 and he

has also verified the submission made by the learned counsel for the petitioner

that the petitioner is not involved in any other criminal case. Short reply by

way of affidavit of Gurinderpal Singh, PPS, Deputy Superintendent of Police,

Attari, Amritsar, is also filed, which is taken on record. The reply (supra)

discloses the antecedents of the petitioner, according to which, the petitioner is

not involved in any other case.

[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 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

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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 [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that 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 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

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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 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:

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"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

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.

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[9] This Court has examined the instant petition on the touchstone of

the hereinabove extracted settled legal principle(s) of law.

[10] At this stage, this Court, without commenting on the merits of the

case, deems it appropriate to extend the benefit of regular bail to the petitioner,

especially considering the fact that the recovered contraband is of non-

commercial quantity and the charges have been framed, however, no

prosecution witness has been examined, out of cited 10 witnesses. However,

in case, the petitioner gets involved in commission of any similar offence, the

State has liberty to move an appropriate application for cancellation of instant

bail. The present petition is allowed. The petitioner is ordered to be released

on bail on his furnishing bail bond and surety bond to the satisfaction of

concerned Chief Judicial Magistrate/trial Court/Duty Magistrate.

[11] However, anything observed here-in-above shall have no effect

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

                                             (KULDEEP TIWARI)
November 15, 2023                                JUDGE
Prince/Devinder

             Whether speaking/reasoned          :     Yes/No
             Whether Reportable                 :     Yes/No




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