Harwinder Singh Alias Kaju vs State Of Punjab
2024 Latest Caselaw 8034 P&H

Punjab-Haryana High Court

Harwinder Singh Alias Kaju vs State Of Punjab on 18 April, 2024

Author: Jasgurpreet Singh Puri

Bench: Jasgurpreet Singh Puri

                                       Neutral Citation No:=2024:PHHC:052132




                                                             2024:PHHC:052132
CRM-M-32242-2023 (O&M)                                                   -1-

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           IN THE HIGH COURT OF PUNJAB & HARYANA
                        AT CHANDIGARH
                             ****
                                 CRM-M-32242-2023 (O&M)
                                 Date of Decision: 18.04.2024

Harwinder Singh alias Kaju                                         .....Petitioner

                                     Versus

State of Punjab                                                  .....Respondent


CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:    Mrs. Anupam Bhanot, Advocate
            for the petitioner.

            Mr. A.S. 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 grant of regular bail to the petitioner in case

bearing FIR No.196 dated 07.08.2021, under Section 21 of the NDPS Act,

1985, registered at Police Station City Tarn Taran, District Tarn Taran.

2. It has been submitted by learned counsel for the petitioner that

the petitioner is in custody for 2 years and 7 months and as per the allegation,

there had been a recovery of 415 grams of Heroin from the present petitioner

and 288 grams of Heroin from the other co-accused, namely, Buta Singh. She

submitted that the aforesaid co-accused, namely, Buta Singh has already been

extended the benefit of regular bail by a Co-ordinate Bench of this Court in

CRM-M-12462-2023 on 24.01.2024 on the ground of delayed trial. She

further submitted that it is a case where the petitioner has been falsely

implicated because of the fact that earlier he was involved in three more cases

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under the NDPS Act, out of which, in two cases he has already been acquitted

and in one case he was convicted and one more case under the Gambling Act.

She further submitted that in the present case, the charges were framed by the

learned trial Court on 20.05.2022 which is almost 1 year and 11 months ago,

but till date only 1 out of 17 prosecution witnesses has been examined. She

submitted that the witness, who has been examined during the aforesaid long

period of time, is not even a material witness nor a part of police party, who

had recovered the contraband, but was a person, who had deposited the sample

with the laboratory. She submitted that in view of the aforesaid long

incarceration and the stage of trial where the prosecution witnesses, who are

none other but the police officials, are not coming forth to depose before the

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

the petitioner in the facts and circumstances of the present case and also in the

light of the judgments of Hon'ble Supreme Court passed in "Satender Kumar

Antil Vs. Central Bureau of Investigation and another", 2022(10) SCC 51,

"Mohd. Muslim @ Hussain Vs. State (NCT of Delhi)", 2023 AIR(SC) 1648,

"Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh" 2023 SCC Online

SC 918 and "Rabi Prakash Vs. The State of Odisha" in Special Leave to

Appeal (Criminal) No.4169 of 2023.

3. On the other hand, Mr. A.S. Pannu, learned AAG, Punjab on

instructions from the police official, who is present in the Court has stated that

it is correct that the petitioner has faced incarceration for 2 years and 7 months

and it is also correct that the charges were framed in the present case on

20.05.2022 which is almost 1 year and 11 months ago and only one

prosecution witness, who had deposited the sample with the laboratory, has

been examined. He has however opposed the grant of regular bail to the

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petitioner on the ground that the recovered quantity from the petitioner was

415 grams of Heroin, 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. So far as the parity of the petitioner with the aforesaid

co-accused, namely, Buta Singh is concerned, he has not disputed the same.

He has opposed the bail also on the ground that the petitioner is a habitual

offender and is involved in four more cases, out of which, three cases are

pertaining to the NDPS Act, although he has been acquitted in two cases.

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

5. It is a case where the petitioner has faced incarceration for 2 years

and 7 months and the charges in the present case were framed on 20.05.2022

which is almost 1 year and 11 months ago and till date only one prosecution

witness, who had deposited the same with the laboratory, has been examined

but neither the recovery witness nor the police party, who had allegedly

apprehended the petitioner, has been examined.

6. During the course of arguments, this Court raised a specific query

to the learned AAG, Punjab that as to what is the justification with regard to

non-appearance of the prosecution witnesses before the trial Court to which he

could not offer any justification.

7. Hon'ble Supreme Court in Satender Kumar Antil's case (supra)

discussed this issue with regard to delay in trial and its effect on the right to

life under Article 21 of the Constitution of India. Para No.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

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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) also discussed the issue with regard to delay in trial and the long

custody of the accused person vis-a-vis the bar contained Section 37 of the

NDPS Act. The relevant Paras of the aforesaid judgment 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

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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. Similarly, Hon'ble Supreme Court in Dheeraj Kumar Shukla's

case (supra) has opined 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

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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. Thereafter, Hon'ble Supreme Court in Rabi Prakash's case

(Supra) has dealt with the issue of prolonged incarceration. The relevant

portion of the judgment is reproduced as below:

"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 wherein the

custody of the petitioner has come out to be 2 years and 7 months and almost 1

year and 11 months have elapsed after the framing of the charges, only one

witness has been examined, this Court is of the considered view that 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 view of the

aforesaid judgments of the Hon'ble Supreme Court of India on the issue. Apart

from the above, the petitioner is also stated to be at parity with the aforesaid

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co-accused, namely, Buta Singh, who has since been extended the benefit of

regular bail by a Co-ordinate Bench of this Court. Therefore, this Court deems

it fit and proper to grant regular bail to the petitioner.

12. Consequently, the present petition is allowed and the petitioner is

ordered to be released on regular bail on furnishing bail bond/surety bond to

the satisfaction of the trial Court/Duty Magistrate concerned, if not required in

any other case.

13. However, anything observed hereinabove shall not be treated as

an expression of opinion on merits of the case and is only meant for the

purpose of decision of present petition.

18.04.2024                           (JASGURPREET SINGH PURI)
Bhumika                                       JUDGE
             1. Whether speaking/reasoned:       Yes/No
             2. Whether reportable:              Yes/No




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