Punjab-Haryana High Court
Ajay Masih @ Kalu vs State Of Punjab on 18 April, 2024
Neutral Citation No:=2024:PHHC:051924
CRM-M-1992-2024 -1-
2024:PHHC:051924
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
221/2 CRM-M-1992-2024
Date of Decision :April 18, 2024
AJAY MASIH ALIAS KALU .....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Krishan Singh Dadwal, Advocate
for the petitioner.
Mr.Raghav Garg, AAG, Punjab.
KULDEEP TIWARI. J.(Oral)
1. Through the instant petition, the petitioner craves for
indulgence of this Court for his being enlarged on regular bail, in case
FIR No.228, dated 09.10.2023, under Section 18 of the Narcotic Drugs
and Psychotropic Substances Act, 1985, and under Sections 148 and 149
of the IPC (Section 25 of the Arms Act, added later on), registered at
Police Station Division No.8, Commissionerate, Jalandhar.
ALLEGATIONS AGAINST THE PETITIONER
2. The case as set up by the prosecution agency, is that the
petitioner, was driving a car, with the two other co-accused, namely-
Vijay Masih, and Gagandeep Singh alias Baba, who were sitting besides
him. During the search of the car, 2 kg. of opium wrapped in a black
colour polythene, was recovered, which was kept under the seat of driver.
All three persons were arreseted, and during investigation, present
petitioner Ajay Masih and other co-accused Vijay Masih, suffered
1 of 8
Neutral Citation No:=2024:PHHC:051924
disclosure statement, and on the basis of that, recover of two country-
made pistol, one desi katta (countrymade pistol), alongwith 20 cartridges
of 32 bore were recovered, and thereupon, offence punishable under
Sections 25/54/59 of the Arms Act, and under Sections 148 and 149 of
the IPC, were added vide GD No.34, dated 12.10.2023.
SUBMISSIONS OF LEARNED COUNSEL FOR THE
PETITIONER
3. In asking for the relief of regular bail, learned counsel for the
petitioner submits that the petitioner is not involved in any other criminal
case under the NDPS Act.
4. He further submits that the recovery effected from the
present petitioner is of 2 Kg. opium, which falls within the ambit of non-
commercial quantity, and he has already suffered incarceration of more
than 6 months.
5. He further submits that the co-accused-Gagandeep Singh
alias Baba, who was also present in the car alongwith the present
petitioner, has already been extended the benefit of regular bail by the
learned trial Court concerned.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
6. Per contra, the learned State counsel opposes the asked for
relief of grant of regular bail.
7. He has filed a short reply dated 18.04.2024, by way of an
affidavit of Daman Bir Singh, ACP (North), Police Commissionerate,
Jalandhar, and also the custody certificate qua the petitioner, today in
Court, which are taken on record, with copies thereof supplied to learned
2 of 8
Neutral Citation No:=2024:PHHC:051924
counsel for the petitioner.
8. The custody certificate reflects that the petitioner has
suffered incarceration of 6 months and 6 days as on today. However, the
petitioner is shown to have been involved in 10 more criminal cases, but
admittedly he is not involved in any other case under NDPS Act.
9. He further, on instructions imparted to him by the police
official, submits that the final report has already been filed, and the
charges have been framed on 23.01.2024, and out of total 14 prosecution
witnesses cited by the prosecution, none has been examined so far.
ANALYSIS
10. "Bail is the Rule and Jail is an Exception". This basic
principle of criminal jurisprudence was laid down by the Hon'ble
Supreme Court, way back in 1978, in its landmark judgment titled "State
of Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1)
535. This principle finds its roots in one of the most distinguished
fundamental rights, as enshrined in Article 21 of the Constitution of
India. Though the underlying objective behind detention of a person is to
ensure easy availability of an accused for trial, without any
inconvenience, however, in case the presence of an accused can be
secured otherwise, then detention is not compulsory.
11. The right to a speedy trial is one of the rights of a detained
person. However, while deciding application for regular bail, the Courts
shall also take into consideration the fundamental precept of criminal
jurisprudence, which is "the presumption of innocence", besides the
3 of 8
Neutral Citation No:=2024:PHHC:051924
gravity of offence(s) involved.
12. In "Nikesh Tarachand Shah V. Union of India", (2018) 11
SCC 1, the Hon'ble Supreme Court has recorded the following:-
"14. In Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 at 586-588, the purpose of granting
bail is set out with great felicity as follows:-
"27. It is not necessary to refer to decisions which
deal with the right to ordinary bail because that right
does not furnish an exact parallel to the right to
anticipatory bail. It is, however, interesting that as
long back as in 1924 it was held by the High Court of
Calcutta in Nagendra v. King-Emperor the object of
bail is to secure the attendance of the accused at the
trial, that the proper test to be applied in the solution
of the question whether bail should be granted or
refused is whether it is probable that the party will
appear to take his trial and that it is indisputable that
bail is not to be withheld as a punishment. In two
other cases which,significantly, are the 'Meerut
Conspiracy cases' observations are to be found
regarding the right to bail which deserve a special
mention. In K.N. Joglekar v. Emperor [AIR 1931 All
504 : 33 Cri LJ 94] it was observed, while dealing
with Section 498 which corresponds to the present
Section 439 of the Code, that it conferred upon the
Sessions Judge or the High Court wide powers to
grant bail which were not handicapped by the
restrictions in the preceding Section 497 which
corresponds to the present Section 437. It was
observed by the court that there was no hard and fast
rule and no inflexible principle governing the exercise
4 of 8
Neutral Citation No:=2024:PHHC:051924
of the discretion conferred by Section 498 and that the
only principle which was established was that the
discretion should be exercised judiciously. In Emperor
v. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ
1271] it was said that it was very unwise to make an
attempt to lay down any particular rules which will
bind the High Court, having regard to the fact that the
legislature itself left the discretion of the court
unfettered. According to the High Court, the variety of
cases that may arise from time to time cannot be safely
classified and it is dangerous to make an attempt to
classify the cases and to say that in particular classes
a bail may be granted but not in other classes. It was
observed that the principle to be deduced from the
various sections in the Criminal Procedure Code was
that grant of bail is the rule and refusal is the
exception. An accused person who enjoys freedom is
in a much better position to look after his case and to
properly defend himself than if he were in custody. As
a presumably innocent person he is therefore entitled
to freedom and every opportunity to look after his own
case. A presumably innocent person must have his
freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna
Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor
[(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p.
242, para 1)
"... the issue of bail is one of liberty, justice, public
safety and burden of the public treasury, all of which insist
that a developed jurisprudence of bail is integral to a
socially sensitized judicial process. . . . After all, personal
liberty of an accused or convict is fundamental, suffering
5 of 8
Neutral Citation No:=2024:PHHC:051924
lawful eclipse only in terms of procedure established by law.
The last four words of Article 21 are the life of that human
right."
29. In Gurcharan Singh v. State (Delhi Administration)
[(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by
Goswami, J., who spoke for the court, that: (SCC p. 129,
para 29)
"There cannot be an inexorable formula in the matter
of granting bail. The facts and circumstances of each case
will govern the exercise of judicial
discretion in granting or cancelling bail."
30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p.
806, para 39), it is stated:
"Where the granting of bail lies within the discretion
of the court, the granting or denial is regulated, to a large
extent, by the facts and circumstances of each particular
case. Since the object of the detention or imprisonment of
the accused is to secure his appearance and submission to
the jurisdiction and the judgment of the court, the primary
inquiry is whether a recognizance or bond
would effect that end."
It is thus clear that the question whether to grant bail
or not depends for its answer upon a variety of
circumstances, the cumulative effect of which must enter
into the judicial verdict. Any one single circumstance cannot
be treated as of universal validity or as necessarily
justifying the grant or refusal of bail."
13. Also, in Siddharam Satlingappa Mhetre v. State of
Maharashtra, Criminal Appeal No.2271 of 2010, the Hon'ble Supreme
Court has insisted upon striking a perfect balance of sanctity of an
individual's liberty as well as the interest of the society, in grant or
6 of 8
Neutral Citation No:=2024:PHHC:051924
refusing bail. The relevant extract of the judgment (supra) is reproduced
hereinafter:-
3. The society has a vital interest in grant or
refusal of bail because every criminal offence is the
offence against the State. The order granting or
refusing bail must reflect perfect balance between the
conflicting interests, namely, sanctity of individual
liberty and the interest of the society. The law of bails
dovetails two conflicting interests namely, on the one
hand, the requirements of shielding the society from
the hazards of those committing crimes and
potentiality of repeating the same crime while on bail
and on the other hand absolute adherence of the
fundamental principle of criminal jurisprudence
regarding presumption of innocence of an accused
until he is found guilty and the sanctity of individual
liberty.
14. This Court has examined the instant petition on the
touchstone of the hereinabove extracted settled and legal principle(s) of
law and is of the considered opinion that the instant petition is amenable
for being allowed.
FINAL ORDER
15. Considering the fact that the recovery of contraband effected
from the present petitioner is of non-commercial quantity, and he has
suffered incarceration of 6 months and 6 days, as on today, and he is not
involved in any other criminal case under the NDPS act, coupled with the
fact that the co-accused of the petitioner Gagandeep Singh alias Baba, has
already been granted regular bail by the learned trial Court concerned,
7 of 8
Neutral Citation No:=2024:PHHC:051924
and further the conclusion of the trial will take long time and out of the
total 14 prosecution witnesses, none has been examined till date, this
Court deems it fit and appropriate to grant the concession of regular bail
to the petitioner. Therefore, without commenting upon the merits and
circumstances of the present case, the present petition is allowed. The
petitioner is ordered to be released on bail, on furnishing of bail bond and
surety bond to the satisfaction of concerned Chief Judicial
Magistrate/trial Court/Duty Magistrate.
16. However, it is clarified that if in future, the petitioner is
found indulging in commission of similar offences, as are involved
herein, the respondent-State shall be at liberty to make an appropriate
application seeking cancellation of regular bail, as granted by this Court.
Moreover, anything observed here-in-above shall have no effect on the
merits of the trial and is meant for deciding the present petition only.
(KULDEEP TIWARI)
April 18, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
8 of 8
