Mewa Singh vs State Of Punjab
2023 Latest Caselaw 14997 P&H

                                                          Neutral Citation No:=2023:PHHC:115926




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CRM-M-35072-2020                                                               -1-

210
           IN THE HIGH COURT OF PUNJAB & HARYANA
                       AT CHANDIGARH

                                     ****

                                               CRM-M-35072-2020
                                               Date of Decision: 04.09.2023

Mewa Singh
                                                                     ..... Petitioner

                                    Versus

State of Punjab
                                                                   ..... Respondent


CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI


Present:     Mr. P.S. Sekhon, Advocate,
             for the petitioner.

             Mr. Sarabjit Singh Cheema, DAG, Punjab.

                          ****
JASGURPREET SINGH PURI, J. (ORAL)

1. The present petition has been filed under Section 439 of the

Code of Criminal Procedure for grant of regular bail to the petitioner in case

bearing FIR No.56 dated 23.06.2020, under Sections 22, 61 of the NDPS

Act, 1985, registered at Police Station Ghanaur, District Patiala.

2. It has been submitted by learned counsel for the petitioner that

the petitioner is in custody for 3 years, 2 months and 8 days as of today. He

further submitted that it is a case where the petitioner is having clean

antecedents and is not involved in any other case and it was only because of

political rivalry in the village that the present FIR was planted upon the

petitioner. He also submitted that as per the FIR, the petitioner was coming

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on paved road from Village Lachhru Khurd side and after seeing the police

party, he threw away the polythene bag on the road which he was carrying

from where there was a recovery of 1300 tablets of Tramadol. He further

submitted that his submission with regard to the fact that the present case

was planted upon the petitioner is substantiated from the fact that the

charges in the present case were framed by the learned trial Court on

26.11.2020 which is more than 2 years and 9 months ago but till date only

two prosecution witnesses, namely, Kamal Sharma and ASI Tejpal Singh

have been examined and they are only formal witnesses. Since the aforesaid

Kamal Sharma had only put his UID sample and ASI Tejpal Singh was the

person, who had deposited the sample in the forensic laboratory but none of

the persons who were part of the police party or recovery witness etc. have

been examined till date despite the fact that the charges were framed more

than 2 years and 9 months ago. He further submitted that one another

witness, who is the I.O. of the present case, was examined-in-chief on

09.02.2023 and the case was deferred by the learned Special Judge for his

cross-examination and thereafter for 7 times the matter was adjourned but he

has not submitted himself for his cross-examination.

3. During the course of arguments, the learned counsel for the

petitioner has also supplied the photocopy of the zimni orders which were

passed by the learned trial Court after the framing of the charges. While

referring to the aforesaid zimni orders, he submitted that when the I.O. was

examined on 09.02.2023 and the proceedings were deferred for his cross-

examination and rather he was bound down to be present on the next date of

hearing but thereafter, for 7 times the matter was taken up but he did not

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appear for the reasons best known to him. Learned counsel for the petitioner

also submitted that after the framing of the charges for about 10 times

bailable warrants were issued against the prosecution witnesses, who are

none other but the police officials who have set the criminal law into motion

and the reason for non-appearing before the Court was that the petitioner

was falsely implicated in the present case because of political rivalry in the

village.

4. Learned counsel for the petitioner has referred to the judgments

of the Hon'ble Supreme Court passed in "Satender Kumar Antil Vs. Central

Bureau of Investigation and another", 2022(10) SCC 51, "Mohd. Muslim

@ Hussain Vs. State (NCT of Delhi)", 2023 AIR(SC) 1648, Special Leave

to Appeal (Criminal ) No.6690 of 2022 titled as "Dheeraj Kumar Shukla

Vs. The State of Uttar Pradesh" and Special Leave to Appeal (Criminal)

No.4169 of 2023 titled as "Rabi Prakash Vs. The State of Odisha" and

and contended that in view of the aforesaid factual position as well as the

judgments passed by the Hon'ble Supreme Court when there is a long delay

in the trial and especially when it is not the fault of the accused and in that

situation even the effect of Section 37 of the NDPS Act will be diluted in the

given facts and circumstances of each and every case.

5. On the other hand, Mr. Sarabjit Singh Cheema, learned DAG,

Punjab has stated that it is correct that the petitioner has faced incarceration

for 3 years, 2 months and 8 days and it is also correct that the petitioner has

clean antecedents and is not involved in any other case. He has however

opposed the grant of regular bail to the petitioner on the ground that the

recovered quantity from the petitioner which was thrown by him on the road,

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was 1300 tablets of Tramadol, 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.

6. I have heard the learned counsels for the parties.

7. It is a case where the petitioner has faced incarceration for

about 3 years, 2 months and 8 days. The petitioner is stated to be having

clean antecedents and is not involved in any other case. Since the recovered

quantity in the present case is 1300 tablets of Tramadol, which falls in the

category of commercial quantity, this Court would, therefore, consider the

prayer of the petitioner for grant of regular bail in the light of Section 37 of

the NDPS Act. During the course of arguments, the learned counsel for the

petitioner has referred to various orders which have been passed by the

learned trial Court after the framing of the charges and has contended that

for 10 times, bailable warrants were issued against the prosecution

witnesses, who are the police officials but they did not care to appear before

the Court for deposition. In the present case, two witnesses earlier were

examined, who were not even material witnesses but only formal witnesses.

One of the witnesses, namely, ASI Baljeet Singh, who is the I.O. of the

present case, has been examined-in-chief on 09.02.2023 and thereafter, the

proceedings were deferred and he was bound down to appear on the next

date of hearing but for 7 dates he did not turn up for submitting himself for

cross-examination. The net result of the same was that the trial got delayed

and the petitioner, who has no criminal background, had to face

incarceration for 3 years, 2 months and 8 days.

8. During the course of arguments, this Court had raised a specific

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query to the learned State counsel as to what was the justification as to why

in the present case the prosecution witnesses, who are the police officials

and who have set the criminal law into motion, have not cared to depose

before the Court despite the fact that even bailable warrants were repeatedly

issued against them and one of the witnesses was even bound down for

appearing, to which the learned State counsel after taking instructions from

the police official who is present in Court today could not offer any

justification or explanation in this regard.

9. The Hon'ble Supreme Court in Satender Kumar Antil's case

(supra) discussed this issue with regard to delay in trial and its effect on the

right to life under Article 21 of the Constitution of India. Para No.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

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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."

10. Now recently, Hon'ble Supreme Court in Mohd. Muslim @

Hussain's case (supra) also discussed the issue with regard to delay in trial

and the long custody of the accused person vis-a-vis the bar contained

Section 37 of the NDPS Act. The relevant Paras of the aforesaid judgment

are 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. 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

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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."

11. Similarly, the Hon'ble Supreme Court in Dheeraj Kumar

Shukla's case (supra) has opined as under:

"3. It appears that some of the occupants of the 'Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed."

12. Further recently, the Hon'ble Supreme Court in Rabi Prakash's

case (Supra) has dealt with the issue of prolonged incarceration. The

relevant portion of the judgment is reproduced as below:

"4. As regard to the twin conditions contained in Section

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37 of the NDPS Act, learned counsel for the respondent- State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."

13. After hearing the learned counsels for the parties the facts and

circumstances suggest that the petitioner has clean antecedents and is not

involved in any other case and has already faced incarceration for 3 years, 2

months and 8 days and for last 2 years and 9 months after the framing of the

charges, only two witnesses have been examined and who are the persons,

who had either deposited the recovered contraband in the FSL or put the

UID sample, but none of the person, who were part of the police party or

recovery witness have been examined. However, one of the witnesses,

namely, ASI Baljeet Singh has been examined-in-chief but not fully

examined and after being bound down, he did not care to depose before the

Court for 7 times as per the interlocutory orders referred by the learned

counsel for the petitioner. Therefore, this Court is of the view that the bar

contained under Section 37 of the NDPS Act will not apply to the present

petitioner especially in the light of Article 21 of the Constitution of India.

Consequently, this Court deems it fit and proper to grant regular bail to the

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petitioner especially considering the long custody.

14. In view of the above, the present petition is allowed and the

petitioner is ordered to be released on regular bail on furnishing bail

bond/surety bond to the satisfaction of the trial Court/Duty Magistrate

concerned, if not required in any other case.

15. 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 present petition.

04.09.2023                       (JASGURPREET SINGH PURI)
Bhumika                                    JUDGE
            1. Whether speaking/reasoned:       Yes/No
            2. Whether reportable:              Yes/No




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