Punjab-Haryana High Court
Deepak @ Dholu vs State Of Haryana on 12 September, 2023
Neutral Citation No:=2023:PHHC:119670
2023:PHHC:119670
CRM-M-43785-2023 -1-
218
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
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CRM-M-43785-2023
Date of Decision: 12.09.2023
Deepak @ Dholu
..... Petitioner
Versus
State of Haryana
..... Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Shailender Singh Momi, Advocate,
for the petitioner.
Ms. Harpreet Kaur, AAG, Haryana.
****
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 case
bearing FIR No.8 dated 09.01.2021, under Sections 20/20A/61 of the NDPS
Act, 1985, registered at Police Station Jhojhu Kalan, District Charkhi Dadri.
2. It has been submitted by learned counsel for the petitioner that
the petitioner is in custody for 2 years, 4 months and 28 days in total after
excluding the period of interim bail granted to him. He further submitted that
during the trial, the petitioner had been admitted to interim bail for five
times on the ground that the mother of the petitioner is seriously ill and the
petitioner had always surrendered well in time. He also submitted that it is a
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case where the petitioner is having clean antecedents and is not involved in
any other case and has been falsely implicated in the present case. He further
submitted that in the present case, the allegations against the petitioner were
with regard to recovery of 4 kgs. and 400 grams of Charas.
3. Learned counsel for the petitioner further submitted that earlier
the petitioner had filed a bail petition before this Court in CRM-M-23550-
2022 and the same was dismissed on 22.08.2022 on the ground that the
petitioner was not able to make out any ground for making a departure from
the bar contained under Section 37 of the NDPS Act and more than one year
has elapsed and only 5 witnesses have been examined till date. He further
submitted that the aforesaid dismissal of the bail petition by this Court was
assailed by the petitioner before the Hon'ble Supreme Court and the SLP
(Criminal) was also dismissed by the Hon'ble Supreme Court on 14.12.2022
vide Annexure P-6 with a request to the trial Court to conclude the trial
expeditiously. He also submitted that thereafter again, about nine months
have elapsed and only three witnesses have been examined by the learned
trial Court. He referred to the orders passed by the learned trial Court after
the dismissal of the SLP by the Supreme Court which have been attached
with the present petition as Annexure P-8 colly. and while referring to the
same, he submitted that for a number of times, even the petitioner was not
produced before the Court and for the purpose of examining the prosecution
witnesses, the trial Court was constrained to issue bailable warrants against
them with the surety of sum of Rs.5,000/- and after such coercive steps
being taken, still only 2 witnesses have been examined. He further submitted
that if the petitioner is not produced in the Court by the police, then the
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delay in trial is not attributable to the petitioner and it is the duty of the
police and the jail authorities to produce the petitioner for which there is no
justification with the prosecution.
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, Ms. Harpreet Kaur, learned AAG, Haryana
has stated that it is correct that the petitioner has faced incarceration for 2
years, 4 months and 28 days and regarding which she has filed the custody
certificate of the petitioner, which is taken on record. She further submitted
that it is also correct that the petitioner has clean antecedents and is not
involved in any other case. She however submitted that now five witnesses
have been examined but the recovered quantity from the petitioner was 4
kgs. and 400 grams of Charas, 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.
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6. I have heard the learned counsels for the parties.
7. It is a case where more than one year ago, the first bail petition
of the petitioner was dismissed by this Court on the ground that the
petitioner was not able to make out any ground for making a departure from
the bar contained under Section 37 of the NDPS Act. Thereafter, now the
total custody of the petitioner is 2 years, 4 months and 28 days. The
petitioner has attached the interlocutory orders passed by the learned trial
Court after the dismissal of the SLP by the Hon'ble Supreme Court and a
perusal of the same would show that even thereafter only two witnesses have
been examined and coercive steps were taken by the learned trial Court to
summon the prosecution witnesses, who are the police officials and who
have set the criminal law into motion and bailable warrants have also been
issued against them. Apart from the above, even for a number of times the
petitioner was not even produced before the Court and for that a specific
query was raised to the learned State counsel with regard to the justification
to which she could not justify the same. This Court had raised a specific
query to the learned State counsel with regard to the fact that as to why in
the present case, the trial Court was constrained to issue bailable warrants
against the prosecution witnesses and as to why they have not cared to
depose before the Court, 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.
8. 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
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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 occasioned due
to no fault of his own."
9. Again, Hon'ble Supreme Court in Mohd. Muslim @ Hussain's
case (supra) 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
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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."
10. Similarly, the Hon'ble Supreme Court in Dheeraj Kumar
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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."
11. 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
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."
12. In the present case, the total custody of the petitioner is 2 years,
4 months and 28 days. The petitioner is stated to be not involved in any
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other case and has clean antecedents. The aforesaid interlocutory orders
passed by the learned trial Court even after the dismissal of the SLP would
show that the delay has occurred not at the fault of the petitioner. In addition
to above, there is another factor which requires to be considered for the
purpose of consideration of bail to the petitioner. It is so stated by the
learned counsel for the petitioner that the mother of the petitioner is
critically ill and for that purpose he was granted interim bail for five times
and he had surrendered well in time. Therefore, considering the aforesaid
totality of the circumstances of the present case, this Court is of the view
that the bar contained under Section 37 of the NDPS Act will not apply to
the present petitioner at this stage especially in the light of Article 21 of the
Constitution of India and in the light of the aforesaid judgments passed by
the Hon'ble Supreme Court.
13. Consequently, 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.
14. 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.
12.09.2023 (JASGURPREET SINGH PURI)
Bhumika JUDGE
1. Whether speaking/reasoned: Yes/No
2. Whether reportable: Yes/No
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