Punjab-Haryana High Court
Mangal Singh @ Mangli vs State Of Punjab on 5 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:046236
CRM-M-9345-2024(O&M) -1- 2024:PHHC:046236
204
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-9345-2024(O&M)
Date of Decision: 05.04.2024
Mangal Singh @ Mangli
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Ms. Riffi Birla, Advocate, for the petitioner.
Mr. Adeshwar Singh Pannu, AAG, Punjab.
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JASGURPREET SINGH PURI, J. (Oral)
1. The present is a third petition filed under Section 439 of the
Code of Criminal Procedure for grant of regular bail to the petitioner in FIR
No.293 dated 07.12.2019, under Sections 21/61/85 of NDPS Act (Sections
18/23/29 of NDPS Act added later on), registered at Police Station Sadar
Fazilka, District Fazilka.
2. Learned counsel for the petitioner has submitted that the
petitioner is in custody for 4 years and 3 months and charges in the present
case were framed on 10.03.2022 which is more than 2 years ago and till
date only one prosecution witness has been examined. She submitted that it
is a case where the petitioner has been falsely implicated and as per the
allegations, the petitioner was allegedly going on a bullock cart which was
checked by the BSF personnel and thereafter, there was alleged recovery of
2 kgs. and 156 grams of heroin, besides 45 grams of opium. She submitted
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that the petitioner is not involved in any other case and has got clean
antecedents and has been falsely implicated at the instance of the police. She
further submitted that be that as it may, the bar contained under Section 37
of the NDPS Act will not apply to the present petitioner in view of the long
custody of the petitioner which comes out to be 4 years and 3 months and
more than 2 years have elapsed after the framing of the charges but only one
prosecution witness has been examined. She referred to the judgments of
Hon'ble Supreme Court in Satender Kumar Antil Versus Central Bureau of
Investigation and another [2022 (10) SCC 51], Mohd. Muslim @ Hussain
Versus State (NCT of Delhi) [2023 AIR (SC) 1648], Dheeraj Kumar Shukla
v. The State of Uttar Pradesh (Special Leave to Appeal (Crl.) No.(s) 6690
of 2022) and Rabi Prakash Versus State of Odisha, Special Leave to Appeal
(Crl.) No.4169 of 2023 to contend that in the facts and circumstances of the
present case and considering the custody of the petitioner, he may be
considered for the grant of regular bail.
4. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab
has submitted on instructions from ASI Raj Singh who is present in the
Court that so far as the custody of the petitioner is concerned, the same is
correct and the petitioner is having clean antecedents and he is not
involved in any other case. He has however opposed the grant of bail to the
petitioner on the ground that since the recovery falls in the category of
commercial quantity, the prayer of the petitioner is hit by the bar contained
under Section 37 of the NDPS Act. He also submitted on specific instructions
that after the framing of the charges on 10.03.2022 which is more than 2 years
ago only one prosecution witness has been examined.
5. I have heard the learned counsel for the parties.
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6. It is a case where the petitioner has already faced incarceration
for more than 4 years and 3 months and the charges in the present case were
framed on 10.03.2022 and more than 2 years have elapsed after the framing
of the charges but only one prosecution witness has been examined as per
learned counsel for the parties. The petitioner is stated to be not involved in
any other case and is having clean antecedents. Since the alleged recovery
from the petitioner falls in the category of commercial quantity, it will be
necessary to consider the effect of Section 37 of the NDPS Act in the
present case.
7. On a query being raised to the learned State counsel as to what
was the justification as to why only one prosecution witness has been
examined even after more than two years have elapsed after the framing of
the charges to which after receiving instructions from the concerned officer
who is present in the Court, he could not give any justification.
8. Hon'ble Supreme Court in Satender Kumar Antil Versus Central
Bureau of Investigation and another (Supra) has discussed this serious issue.
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 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
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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. Hon'ble Supreme Court in Mohd. Muslim @ Hussain (Supra)
has dealt with this issue. The relevant portion of the aforesaid judgment
contained in para No.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 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
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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. 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 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. Hon'ble Supreme Court in Rabi Prakash Versus State of Odisha
(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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12. After hearing the learned counsel for the parties, this Court is
of the view that considering the judgments of the Hon'ble Supreme Court as
aforesaid and considering the fact that the petitioner is in custody for more
than 4 years and 3 months and the stage of the trial whereby more than 2
years have elapsed after the framing of the charges but only one prosecution
witness has been examined, 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.
13. Therefore, considering the totality and circumstances of the
present case, this Court deems it fit and proper to grant regular bail to the
petitioner.
14. 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.
15. 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.
05.04.2024 (JASGURPREET SINGH PURI)
rakesh JUDGE
Whether speaking : Yes/No
Whether reportable : Yes/No
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