Kishori Paswan vs State Of Punjab
2024 Latest Caselaw 7607 P&H

Punjab-Haryana High Court

Kishori Paswan vs State Of Punjab on 10 April, 2024

Author: Jasgurpreet Singh Puri

Bench: Jasgurpreet Singh Puri

                                       Neutral Citation No:=2024:PHHC:048842



CRM-M-16665-2024                                                            -1-
                                                                 2024:PHHC:048842


205
            IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                            CRM-M-16665-2024
                                                     Date of decision: 10.04.2024

KISHORI PASWAN
                                                                       ...Petitioner

                                    VERSUS

STATE OF PUNJAB
                                                                      ...Respondent

CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:-   Mr. Mayur Singla, Advocate
            for the petitioner.

            Mr. Adeshwar Singh Pannu, AAG, Punjab.

                   ****

JASGURPREET SINGH PURI, J. (Oral)

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

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

No.56 dated 17.08.2022, under Sections 18 and 22 of the NDPS Act, registered

at Police Station Bakshiwala, District Patiala, Punjab.

2. Learned counsel for the petitioner submitted that the petitioner is in

custody from 17.08.2022, which is almost 1 year and 8 months and after

completing of the investigation, the police presented the challan on 08.02.2023

and thereafter, the learned trial Court framed charges on 18.05.2023 and more

than 10 months have elapsed after the framing of the charges and till date not

even a single prosecution witness has been examined by the prosecution. He

further submitted that the allegations against the petitioner were with regard to

recovery of 3 kgs. of opium and it was a case which was planted upon the

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petitioner, which is also substantiated from the fact that the petitioner has clean

antecedents and he is not involved in any other case. He further submitted that

there is no justification as to why the prosecution witnesses are not coming

forward after the framing of the charges despite the fact that more than 10

months have elapsed since the learned trial Court has framed the charges. 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 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", 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 Bikram Khan, submitted that so far as the custody of the

petitioner is concerned, the same is not in dispute and charges were framed by

the learned trial Court on 18.05.2023, which is more than 10 months ago and till

date not even a single prosecution witness has been examined. He further

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submitted on instructions that the petitioner has clean antecedents and he is not

involved in any other case. He has however opposed the grant of regular bail to

the petitioner on the ground that there has been a recovery of 3 kgs. of opium

from the petitioner 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.

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

5. The petitioner is in custody from 17.08.2022, which is more than 1

year and 8 months and the allegations against him are with regard to recovery

of 3 kgs. of opium, which falls in the category of commercial quantity because

as per the NDPS Act, the commercial quantity for opium is defined as 2.5 kgs.

As per the learned counsel for the parties, the petitioner has clean antecedents

and he is not involved in any other case.

6. On a query being raised to the learned State counsel as to what is

the justification as to why after a lapse of more than 10 months after the

framing of the charges by the learned trial Court, no prosecution witness has

been examined till date, to which on instructions from the concerned

Investigating Officer who is present in the Court, he could not give any

justification.

7. 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

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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".

8. 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

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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.

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 Maurya

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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."

11. In view of the aforesaid facts and circumstances of the present case

and considering the stage of the trial, the custody of the petitioner and his

antecedents, this Court is of the view that the bar contained under Section 37 of

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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.

12. 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.

13. 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)
10.04.2024                                               JUDGE
Chetan Thakur


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




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