Punjab-Haryana High Court
Khalara Singh @ Munna @ Khari @ Khlara vs State Of Punjab on 9 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:048315
CRM-M-59819-2023 (O&M) and other connected matter
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
203 (2 cases) CRM-M-59819-2023(O&M)
Date of Decision:09.04.2024
1.
Khalara Singh @ Munna @ Khari@ Khlara
......Petitioner
Versus
State of Punjab
......Respondent
CRM-M-60721-2023(O&M)
Date of Decision:09.04.2024
2.
Sukhdev Singh @ Babbi Bhaleria
......Petitioner
Versus
State of Punjab
......Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Karandeep Singh Sidhu, Advocate for the petitioners.
Mr. Adeshwar Singh Pannu, AAG, Punjab.
*****
JASGURPREET SINGH PURI J.(Oral)
CRM-11039-2024 in CRM-M-59819-2023
Present application has been filed for placing on record copy
of judgments as Annexures P-7 to P-12.
Application is allowed as prayed for subject to all just
exceptions.
The accompanying documents are taken on record as
Annexures P-7 to P-12.
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Main cases
1. Both the present petitions are taken up together for final
disposal with the consent of learned counsel for the parties since both the
petitions arise out of the same FIR and the prayer in both the cases is for
the grant of regular bail.
2. Both the petitions have been filed under Section 439 of the
Code of Criminal Procedure for the grant of regular bail to the petitioners
in FIR No.09 dated 21.01.2023, under Sections 21 of NDPS Act and
Section 25 of Arms Act, 1959, registered at Police Station Mamdot,
District Ferozepur.
3. The brief facts of the present case are that the present FIR
was registered against 09 named and 10 unnamed persons on the basis of
secret information received by the police that there will be delivery of
contraband and arms across the border and in pursuance of the same there
was a recovery of 02 kgs of heroin, one pistol and two magazines and 12
live cartridges from the fields of one Kulwant Singh who is not named in
the FIR nor he is an accused in the present petition. The present
petitioners have been named in the FIR alongwith 07 other persons.
Three of the other accused persons who have been named in the present
FIR i.e.Amrjeet Singh, Mangal Singh and Arshdeep Singh were
exonerated by the police during the course of investigation. However, so
far as Amarjeet Singh, is concerned, later on challan was presented
against him and he filed bail petition bearing No.CRM-M-50114-2023
before this Court which was allowed on 16.11.2023 vide Annexure P-5.
On the basis of secret information, the present FIR was registered but as
per the prosecution itself, there was no recovery from the petitioners.
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4. CRM-M-60721-2023 has been filed by petitioner namely
Sukhdev Singh @ Babbi Bhaleria and CRM-M-59819-2023 has been
filed by petitioner Khalara Singh @ Munna @ Khari@ Khlara and Mr.
K.S. Sidhu, Advocate for the petitioners has appeared on behalf of both
the petitioners.
5. Learned counsel for the petitioners submitted that the
petitioner Khalara Singh @ Munna @ Khari @ Khlara is in custody for
about 11 months and 02 days and petitioner Sukhdev Singh is in custody
for about 01 year and 01 month. He further submitted that it is a case
where the petitioners were falsely implicated in the present FIR only
because of the reason that earlier they were involved in some other cases
and submitted that so far as petitioner Khalara Singh is concerned he was
earlier involved in 14 more cases including 01 case under the NDPS Act
but he already stands acquitted in 09 cases and remaining cases are
pending against him and he is already on bail in 06 cases. So far as the
petitioner Sukhdev Singh is concerned, he is involved in 04 more
criminal cases out of which 03 are pertaining to NDPS Act and he is on
bail in all the cases since the quantity involved in the aforesaid cases was
non-commercial. Learned counsel further submitted that the cross border
contraband smuggling nowadays is a routine practice and the police is not
able to lay its hands on the actual culprits and some of the local
inhabitants around the village are being falsely implicated so as to justify
their actions that some action had been taken in the aforesaid confiscation.
He further submitted that it is a case where the aforesaid heroin and arms
were recovered from the fields of one Kulwant Singh whereas the
aforesaid Kulwant Singh has not been arraigned as an accused and
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because of the pendency of some cases against the petitioners they have
been named and there had been no recovery at all from the present
petitioners. He further submitted that respondent-State has filed status
report in both the cases from which nothing can be ascertained or even
seen as to how the petitioners were connected with the present offence.
He further submitted that when the challan was presented which has been
attached with the present petition during the investigation nothing has
been found to have any connection with the aforesaid confiscation and in
view of the aforesaid facts and circumstances and because of the false
implication, the petitioners are entitled for the grant of regular bail.
6. The learned counsel for the petitioners further submitted that
in order to substantiate his submission with regard to false implication
which can be seen that in the present case the trial Court framed the
charges on 25.05.2023 which is almost 10 months ago and till date not
even a single witness has been examined. Learned counsel also supplied
to this Court photocopy of the interlocutory orders passed by the Trial
Court after framing of the charges and the same are taken on record as
Mark 'X'. While referring to the aforesaid orders, he submitted that on
18.10.2023 the learned trial Court had observed that no prosecution
witness was present and PW Inspector Lekh Raj who is the investigating
officer of the present FIR has not appeared despite service and he was
summoned through non-bailable warrants and the remaining witnesses at
Sr. No.2 and 3 were also summoned. Thereafter on 11.01.2024 again no
PW was present and the aforesaid PW IO Lekh Raj was again summoned
through non-bailable warrants and the remaining witnesses at Sr. No.2 and
3 were also summoned. Thereafter on 01.02.2024, again no PW was
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present and Inspector Lekh Raj was again summoned through non-
bailable warrants and the aforesaid witnesses at Sr. No.2 and 3 were again
summoned Thereafter, when the matter came up for hearing on
12.03.2024 again no PW was present and witnesses at Sr. Nos.2 and 3
were again summoned. He further submitted that in this way the
investigating officer has been summoned thrice by way of non-bailable
warrants but he did not bother to appear before the learned Trial Court to
depose and likewise on each and every date none of the prosecution
witnesses were present despite being summoned repeatedly. He further
submitted that more than 10 months have elapsed after framing of the
charges and despite issuance of non-bailable warrants not even a single
prosecution witness has been examined till date which goes to show that
the petitioners were falsely implicated and that is the reason as to why the
prosecution witnesses are not appearing before the learned Trial Court.
7. Learned counsel for the petitioners 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 affected. 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",
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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.
8. He, however, submitted that neither any recovery was
effected from the petitioners nor it is the case of the prosecution that
anything was recovered from the petitioners. He further submitted that in
the light of aforesaid facts and circumstances of the case, even if recovery
was made from fields of one other person Kulwant Singh, who is not
arraigned as an accused in the present case, bar under Section 37 of NDPS
Act will not apply to the petitioners and therefore, the they may be
considered for grant of regular bail. He also submitted that the FIR and
the challan are presented under Section 21 of NDPS Act and Section 25 of
Arms Act but there is no invocation of Section 29 of NDPS Act in the
present case.
9. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab
on instructions from ASI Jaspal Singh, submitted that so far as the custody
of the petitioners as so stated by learned counsel for the petitioners is
concerned, the same is correct. It is also correct that charges were framed
on 25.05.2023 and more than 10 months have elapsed but no prosecution
witness has been examined till date. He further submitted that one of the
co-accused namely Amarjeet Singh who was earlier exonerated by the
police but later on challan was presented qua him as well and he has
already been extended the benefit of regular bail by this Court. He has,
however, submitted that the present petitioners are not at parity with the
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aforesaid co-accused namely Amarjeet Singh because the aforesaid
Amarjeet Singh is not involved in any other criminal case. He further
submitted that in the present case although there was no recovery from the
petitioners but on the basis of secret information, the petitioners were
named in the FIR and it was on the basis of the aforesaid secret
information that they were arraigned as an accused and the challan has
been presented qua them in the competent Court and, therefore,
considering the criminal antecedents of the petitioners, they are not
entitled for the grant of regular bail.
10. I have heard learned counsel for the parties.
11. It is a case where the petitioner namely Khalara Singh @
Munna @ Khari@ Khlara is in custody for about 11 months and 02 days
and petitioner Sukhdev Singh is in custody for about 01 year and 01
month. Both of the petitioners are stated to be having criminal
antecedents. However, this Court will have to consider the facts and
circumstances of the present case in the light of submissions made by
learned counsel for the petitioners. The allegations in the present case qua
the petitioners were that they have been arraigned as accused in the
present FIR on the basis of the secret information that they were
instrumental in getting the heroin and arms from across the border. The
recovery of the aforesaid contraband and arms was made from the fields
of one Kulwant Singh who is not arraigned in the present FIR. No
recovery has been made from the present petitioners. A perusal of the
status report filed by the State, challan and the submissions made by
learned counsel for the respondent-State would show that nothing could
be seen or ascertained as to how the petitioners were connected with the
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present recovery i.e. the aforesaid arms and contraband. A query was
raised by this Court to learned State counsel as to whether any material
has been found from the petitioners despite secret information being
received to which he submitted that during investigation the mobile phone
etc.of the petitioners were seized and sent to the Forensic Laboratory for
further analysis in the month of February 2023 but no report has been
received till date and as of today except for the secret information, there is
nothing to connect the petitioners with the offence even as per the status
report filed by the respondent-State.
12. Charges in the present case were framed on 25.05.2023
which is almost 10 months ago and a perusal of the interlocutory orders
passed by the learned Trial Court so supplied by learned counsel for the
petitioners as Mark 'X' would show that despite non-bailable warrants
being issued three times, IO namely Lekh Raj, did not bother to appear
before the learned Trial Court for deposition. Similarly two more
witnesses were summoned repeatedly and they also did not bother to
appear before the Trial Court. As a result, the trial got delayed and
because of non-deposition of the prosecution witnesses for the reasons
best known to them, the Trial Court was constrained to repeatedly pass the
orders for summoning and also for issuance of non-bailable warrants.
13. 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:-
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"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 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".
14. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case
(supra) has dealt with the issue regarding delay in trial and long custody
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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 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).
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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.
15. 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
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."
16. 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
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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."
17. In the present case there has been no recovery of any
contraband and arms from the present petitioners and they have been
arraigned on the basis of secret information only and even the report of
the forensic laboratory has not been received till date. During the course
of arguments, this Court had asked a specific query to learned State
counsel as to what was the justification and why the prosecution
witnesses, especially IO of the present case is not appearing before the
Trial Court for deposition non-bailable warrants being issued against him
thrice, to which after taking instructions from the official namely ASI
Jaspal Singh, who is present in Court he was not able to justify the same.
The plea taken by learned counsel for the petitioners with regard to false
implication therefore, cannot be ignored. Although this court does not
wish to make any observation on merits with regard to the aforesaid plea
and it is only for the purpose of considering the bail petition that the
aforesaid plea cannot be ignored .
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18. Therefore, this Court is of the view that considering the
aforesaid totality of facts and circumstances of the present case, the bar
contained under Section 37 of the NDPS Act will not apply to the
petitioners in the light of Article 21 of the Constitution of India and also in
the light of aforesaid judgments of Hon'ble Supreme Court.
19. Consequently, the present petition is allowed. The petitioners
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 concernedd.
20. 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
09.04.2024
shweta
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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