Parkash Singh vs State Of Punjab
2024 Latest Caselaw 7368 P&H

Punjab-Haryana High Court

Parkash Singh vs State Of Punjab on 8 April, 2024

Author: Jasgurpreet Singh Puri

Bench: Jasgurpreet Singh Puri

                                      Neutral Citation No:=2024:PHHC:047200



CRM-M-6665-2024                                                           -1-
                                                                2024:PHHC:047200


204
            IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                            CRM-M-6665-2024
                                                    Date of decision: 08.04.2024

PARKASH SINGH
                                                                      ...Petitioner

                                   VERSUS

STATE OF PUNJAB
                                                                     ...Respondent

CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:-   Mr. Ranbir Singh Sekhon, Advocate
            for the petitioner.

            Mr. Adeshwar Singh Pannu, AAG, Punjab.

                     ****

JASGURPREET SINGH PURI, J. (Oral)

1. The present is a third petition filed under Section 439 of the Code

of Criminal Procedure for the grant of regular bail to the petitioner in FIR

No.48 dated 17.03.2022, under Section 15 of the NDPS Act (Section 25 of the

NDPS Act added later on), registered at Police Station Guruharsahai, District

Ferozepur, Punjab.

2. Learned counsel for the petitioner submitted that it is a case where

allegedly the petitioner was travelling in a truck and was sitting on the cabin

seat of the truck and there had been a recovery of 70 kgs. of poppy husk from

the said truck and so far as the present petitioner is concerned, he was only a

passenger and he has clean antecedents and is not involved in any other case.

He further submitted that the aforesaid quantity is marginally higher than the

commercial quantity as defined under the NDPS Act but considering the fact

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that now the petitioner is in custody for more than 2 years and the charges in the

present case were framed by the learned trial Court on 01.10.2022, which is

more than 1 year and 6 months ago and till date only 3 prosecution witnesses

have been examined and that too in chief only and there has been an

unreasonable delay in the trial of the case resulting in long incarceration of the

petitioner, the bar contained under Section 37 of the NDPS Act will not apply to

the petitioner considering the aforesaid fact and circumstances qua the

petitioner. He 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.

3. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab, on

instructions from ASI Kuldeep Singh, submitted that it is correct that the

petitioner is in custody for more than 2 years and more than 1 year and 6

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months have gone by after the framing of the charges and only 3 prosecution

witnesses have been examined that too in chief only. He further submitted on

instructions that the petitioner has clean antecedents and he is not involved in

any other case.

4. I have heard the learned counsel for the parties.

5. Although the recovery was from the truck and not from the person

of the petitioner, who was travelling in the truck but the custody of the

petitioner has come out to be more than 2 years and he is stated to be not

involved in any other case and has clean antecedents. The alleged recovery

from the truck was 70 kgs. of poppy husk, which is marginally higher than the

commercial quantity, which is defined at 50 kgs. under the NDPS Act. As per

the learned counsel for the parties, more than 1 year and 6 months have elapsed

after the framing of the charges and only 3 prosecution witnesses have been

examined and that too in chief only. No justification has come forth from the

learned State counsel as to why there was such a delay.

6. 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

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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".

7. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case

(supra) has dealt with this issue with regard to 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 can be considered

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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.

8. 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 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

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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."

9. 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."

10. Therefore, considering the aforesaid totality and circumstances of

the present case qua the present petitioner, 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.

11. Consequently, the present petition is allowed. The petitioner shall

be released on regular bail, if not required in any other case, subject to

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furnishing bail bonds/surety bonds to the satisfaction of the learned trial

Court/Duty Magistrate concerned.

12. 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)
08.04.2024                                               JUDGE
Chetan Thakur


                Whether speaking/reasoned        :     Yes/No
                Whether reportable               :     Yes/No




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