Punjab-Haryana High Court
Gurjit Singh Alias Gobinda vs State Of Punjab on 3 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:045031
CRM-M-5848-2024 (O&M) 1 2024:PHHC:045031
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
207 CRM-M-5848-2024(O&M)
Date of Decision:03.04.2024
Gurjit Singh @ Gobinda
......Petitioner
Versus
State of Punjab
......Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Ritesh Pandey, Advocate for
Mr. A.S. Barnala, Advocate for the petitioner.
Mr. Adeshwar Singh Pannu, AAG, Punjab.
*****
JASGURPREET SINGH PURI J.(Oral)
1. The present is a fourth petition filed under Section 439 read
with Section 482 of the Code of Criminal Procedure for the grant of
regular bail to the petitioner in FIR No.35 dated 28.05.2021, under
Sections 21, 22 and 25 of the NDPS Act, registered at Police Station
Thulliwal, District Barnala, Punjab.
2. Learned counsel for the petitioner submitted that the
petitioner is in custody for about 2 years and 09 months and the charges
were framed on 05.10.2021 which is almost two and half years ago. He
further submitted that till today out of 16 prosecution witnesses only 06
prosecution witnesses have been examined and 04 prosecution witnesses
have been given up by the prosecution itself. Learned counsel for the
petitioner further submitted that there has been a delay in the trial on the
part of the prosecution because prosecution witnesses had not been
deposing before the Court for long time and the net result of the same is
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that the petitioner had to face incarceration for about 02 years and 09
months.
3. Learned counsel for the petitioner further submitted that it is
a case where the petitoner has been falsely implicated because of the
reason that earlier he was convicted for a period of three months in one
other case under the NDPS Act and there were four more cases pending
under the IPC against the petitioner and he has earned acquittal in some of
them. He further submitted that because of the aforesaid reason by
terming the petitioner to be a habitual offender, he has been falsely
implicated by the police and a false recovery of 2000 tablets of tramadol
was made upon the petitioner which falls under the commercial quantity.
He further submitted that in order to substantiate his argument, he
referrred to FIR itself and submitted that when the FIR was registered on
the basis of the information, it has been so stated in the FIR that the
petitioner is a habitual offender and the provision of Section 22 of the
NDPS Act is applicable to him and thereafter the process started and the
petitioner was arrested falsely (although in the translated version of the
FIR it has been so stated as under Section 21 of the NDPS Act and in the
vernacular it has been stated as under Section 22 of NDPS Act). He
further submitted that at the time when the information was received by
the police and even according to the prosecution there was no possibility
for the police to have known which provision of law would be applicable
and what could be the quantity which could have been recovered and with
all anticipation, the same has been done and this goes into show that the
petitioner was falsely implicated by way of a premeditated mind and in a
pre-planned manner by the police.
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4. He further submitted that be that as it may even otherwise
also the petitioner has faced incarceration for about 2 years and 09 months
which is a long custody. He has 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 contended that when
there is a long custody, which is not attributable to the accused and the
delay has been caused by the prosecution, then Rights under Article 21 of
the Constitution of India are effected. He also referred to another
judgment of Hon'ble Supreme Court in "Mohd. Muslim @ Hussain
versus State (NCT of Delhi)", 2023 AIR (SC) 1648, wherein the scope of
Section 37 of the NDPS Act vis-a-vis Article 21 of the Constitution of
India has been discussed by taking a serious view with regard to long trial.
He further referred to a judgment of Hon'ble Supreme Court in "Dheeraj
Kumar Shukla versus The State of Uttar Pradesh", 2023 SCC Online
SC 918 and also a judgment of Hon'ble Supreme Court in "Rabi Prakash
versus The State of Odisha", Special Leave to Appeal (Criminal)
No.4169 of 2023 to contend that long custody itself is a ground for grant
of bail notwithstanding the bar contained under Section 37 of the NDPS
Act.
5. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab, on
instructions of ASI Manjeet Singh, submitted that it is correct that the
petitioner is in custody for about 2 years and 09 months and it is also not
disputed that out of total 16 prosecution witnesses only 06 prosecution
witnesses have been examined till date and the charges in the present case
were framed on 05.10.2021 i.e. about two and half years ago. He has
however opposed the grant of regular bail to the petitioner since the
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quantity involved in the present case falls under category of commercial
quantity.
6. I have heard the learned counsel for the parties.
7. It is a case where the petitioner is in custody from about 2
years and 09 months. Undoubtedly, the total recovery from the petitioner
is stated to be about 2000 intoxicant tablets. The petitioner is although
stated to be involved in one another case under the NDPS Act wherein he
was convicted for a period of three months and four more cases under the
IPC are pending against him and in some of the cases he has earned
acquittal. The charges in the present case were framed by the learned trial
Court on 05.10.2021 and more than 02 years and 06 months have elapsed
only six prosecution witnesses have been examined. For the purpose of
considering the bar of Section 37 of the NDPS Act, two aspects are to be
seen. Firstly, the long custody of the petitioner. The Hon'ble Supreme
Court in Satender Kumar Antil's case (supra) has discussed this serious
issue with regard to delay in trial and its effect on the Right to Life of an
individual under Article 21 of the Constitution of India. Para 49 of the
aforesaid judgment is reproduced as under:-
"49. 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
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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 fkk or 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. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case
(supra) has dealt with the issue regarding delay in trial and long custody
of the accused person vis-a-vis the bar contained under Section 37 of the
NDPS Act. The relevant portion of the aforesaid judgment contained in
para Nos.19 and 20 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
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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. The Hon'ble Supreme Court in Dheeraj Kumar Shukla's
case (supra) has observed as under:-
"3. It appears that some of the occupants of the
'Honda City' Car including Praveen Maurya @ Puneet
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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."
10. The Hon'ble Supreme Court in Rabi Prakash's case (supra)
has also discussed the effect of Section 37 of the NDPS Act in such like
cases of long custody. The relevant portion of the aforesaid judgment
contained in para No.4 is reproduced as under:-
"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."
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11. Secondly the argument raised by learned counsel for the
petitioner that even before any alleged recovery was made how could the
police have known that provision of Section 22 of the NDPS Act would
be applicable and particular kind of contraband could be recovered from
the petitioner and it is a case of false implication that cannot be ignored.
Although this Court does not wish to go into the merits of the aforesaid
false implication but only for the purpose of considering the prayer of the
petitioner for making a departure from Section 37 of the NDPS Act the
aforesaid factor is a relevant one.
12. Therefore, this Court is of the view that considering the
aforesaid totality and circumstances of the present case, the bar contained
under Section 37 of the NDPS Act will not apply to the petitioner in the
light of Article 21 of the Constitution of India and also in the light of the
aforesaid judgments of the Hon'ble Supreme Court.
13. Consequently, the present petition is allowed. The petitioner
shall be released on regular bail, if not required in any other case, subject
to furnishing bail bonds/surety bonds to the satisfaction of the learned trial
Court/Duty Magistrate concerned.
14. However, anything observed hereinabove shall not be treated
as an expression of opinion on the merits of the case and is meant for the
purpose of deciding the present petition only.
(JASGURPREET SINGH PURI)
JUDGE
03.04.2024
shweta
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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