Punjab-Haryana High Court
Ashish Kumar Alias Ashu vs State Of Haryana on 2 August, 2024
Neutral Citation No:=2024:PHHC:098925
CRM-M-34430-2024 1
207
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-34430-2024
DATE OF DECISION: 02.08.2024
ASHISH KUMAR ALIAS ASHU ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 439 Cr.P.C.,
has been invoked seeking the concession for the grant of regular bail to
the petitioner in case FIR No.671, dated 29.07.2022, registered under
Sections 22(C) of The Narcotic Drugs and Psychotropic Substances
Act, 1985 (Sections 27-A and 29 of NDPS Act added later on) at Police
Station City Karnal, District Karnal.
2. Prosecution story set up in the present case as per the
version in the FIR read as under :-
'Copy of tehrir is attached. To the SHO Police
Station Karnal Jai hind. Today on 28.07.2022 I SI along with SI
Krishan Kumar 1191/KNL., HC Harpreet Singh 1067/KKR,
EASI Surender Singh 799/Jind along with Govt. Vehicle No.
HR05GV- 9783 make Scorpio, whose driver is Constable Ajay
Kumar 799/KNL in respect of investigation in FIR No. 293 dated
24.07.2022 under Section 22-61-85 NDPS Act took the accused
Amit son of Prem Singh resident of Village Sanoli Police Station
Sanoli District Panipat presently tenant Gali No. 3 Shanti
Nagar, Police Station Ram Nagar, District Karnal was taken on
Police remand for 3 days from Hon'ble Court and after putting
accused Sagar son of Vijay Kumar resident of Gali No. 6 Shiv
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Colony, District Karnal behind bars, proceeded for the search of
Deepak Gujral and Kanhaiya Saini resident of Afgana Mohalla
Karaina District Shamli, when reached near Nirankar Chowk
railway Road Karnal then accused Amit Kumar told me SI that
2/3 days ago I from my mobile No. 9996741241 called Deepak
Gujral resident of Afganan Mohalla Mobile No. 9520740983
and ordered 2400 intoxicating tablets of Alperamed 0:50 MG
without Bill. Deepak told me that on 29.07.2022 Kanhaiya Saini
resident of Afgana Mohalla Kairana, District Shamli will come
in the morning time in the area of Karnal to supply the
Intoxicating medicines. I will also send your order through
Kanhaiya Saini. Kanhaiya Saini will . meet you behind old Bus
Stand Karnal at the tea shop. You after taking VIKRAM SINGH
intoxicating medicines from Kanhaiya transfer money to me
through Google. If Kanhaiya is apprehended after searching
behind old Bus Stand, his search be conducted, then heavy
quantity of intoxicating medicines can be recovered from him.
That the information is correct and believable. On which after
preparing Notice under Section 42 of NDPS Act was sent to the
Police station City Karnal for information through EASI
Surender Singh 799/Jind. On finding the offence under Section
22-61-25 NDPS act has been committed. I SI by writing request
for registration of case sent to the police Station City Karnal
through Ajay Kumar 799/KNL. After registration of case number
be informed. Report of the instant case be sent to the higher
officers. I SI is complainant in the instant case. Therefore, for
further investigation of the instant case another investigation
officer be sent to the spot. I SI along with fellow officers along
with accused Amit above along with Government vehicle are
proceeding for old Bus Stand Karnal. Today:-Nirankari Chowk
Railway Road, Karnal Balwan Singh SI.'
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3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been falsely implicated in this case. The petitioner has
been arrayed as an accused only on the basis of disclosure statement of
co-accused-Deepak who was nominated in the disclosure statement of
main accused-Kanhaiya Saini. He has further argued that no direct
recovery has been effected from the petitioner. The petitioner has been
in custody since 12.01.2023. He submits that no fruitful purpose would
be served by keeping the petitioner behind the bars as conclusion of
trial will take long time as out of total 34 prosecution witnesses, none
has been examined till date.
On behalf of the State
On the other hand, learned State Counsel appearing on
advance notice, accepts notice on behalf of respondent-State and has
filed the custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for 1 year, 6 months
and 17 days.
Learned State Counsel submits on instructions from SI
Jaipal opposes the prayer for grant of regular bail on the ground that
the petitioner is also involved in one more FIR i.e. FIR No. 293/2022
dated 24.07.2022, registered under Sections 22/29/61/85 of the NDPS
Act, at P.S. Ram Nagar, Karnal. He informs the Court that in the
present case challan stands presented on 24.01.2023 and charges stands
framed on 21.07.2023 and out of 34 prosecution witnesses, none has
been examined.
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4. Analysis
From the above case it can be culled out the petitioner has
neither been nominated in the FIR nor arrested from the spot and has
already suffered sufficient period in custody i.e. 1 year, 6 month and 17
days and as per the principle of the criminal jurisprudence, no one
should be considered guilty, till the guilt is proved beyond reasonable
doubt, whereas in the instant case, challan stands presented on
24.01.2023 and charges stands framed on 21.07.2023 and out of 34
prosecution witnesses, none has been examined so far which is
sufficient for this Court to infer that the conclusion of trial is likely to
take considerable time and detaining the petitioner behind the bars for
an indefinite period.
Reliance can be made upon the judgment of the Apex
Court rendered in "Dataram versus State of Uttar Pradesh and
another", 2018(2) R.C.R. (Criminal) 131, wherein it has been held
that the grant of bail is a general rule and putting persons in jail or in
prison or in correction home is an exception. Relevant paras of the said
judgment is reproduced as under:-
"2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important
facet of our criminal jurisprudence is that the grant of bail is the
general rule and putting a person in jail or in a prison or in a
correction home (whichever expression one may wish to use) is
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an exception. Unfortunately, some of these basic principles
appear to have been lost sight of with the result that more and
more persons are being incarcerated and for longer periods.
This does not do any good to our criminal jurisprudence or to
our society.
3. There is no doubt that the grant or denial of bail is entirely
the discretion of the judge considering a case but even so, the
exercise of judicial discretion has been circumscribed by a large
number of decisions rendered by this Court and by every High
Court in the country. Yet, occasionally there is a necessity to
introspect whether denying bail to an accused person is the right
thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence witnesses.
If the investigating officer does not find it necessary to arrest an
accused person during investigations, a strong case should be
made out for placing that person in judicial custody after a
charge sheet is filed. Similarly, it is important to ascertain
whether the accused was participating in the investigations to
the satisfaction of the investigating officer and was not
absconding or not appearing when required by the investigating
officer. Surely, if an accused is not hiding from the investigating
officer or is hiding due to some genuine and expressed fear of
being victimised, it would be a factor that a judge would need to
consider in an appropriate case. It is also necessary for the
judge to consider whether the accused is a first-time offender or
has been accused of other offences and if so, the nature of such
offences and his or her general conduct. The poverty or the
deemed indigent status of an accused is also an extremely
important factor and even Parliament has taken notice of it by
incorporating an Explanation to section 436 of the Code of
Criminal Procedure, 1973. An equally soft approach to
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incarceration has been taken by Parliament by inserting section
436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted
by a judge, while dealing with an application for remanding a
suspect or an accused person to police custody or judicial
custody. There are several reasons for this including
maintaining the dignity of an accused person, howsoever poor
that person might be, the requirements of Article 21 of the
Constitution and the fact that there is enormous overcrowding in
prisons, leading to social and other problems as noticed by this
Court in In Re-Inhuman Conditions in 1382 Prisons, 2017(4)
RCR (Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.)
408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered
in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE
609 going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way
back in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that
bail is not to be withheld as a punishment. Reference was also
made to Emperor v. Hutchinson, AIR 1931 Allahabad 356
wherein it was observed that grant of bail is the rule and refusal
is the exception. The provision for bail is therefore age-old and
the liberal interpretation to the provision for bail is almost a
century old, going back to colonial days.
7. However, we should not be understood to mean that bail
should be granted in every case. The grant or refusal of bail is
entirely within the discretion of the judge hearing the matter and
though that discretion is unfettered, it must be exercised
judiciously and in a humane manner and compassionately. Also,
conditions for the grant of bail ought not to be so strict as to be
incapable of compliance, thereby making the grant of bail
illusory."
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Therefore, to elucidate further, this Court is conscious of
the basic fundamental law that right to speedy trial is a part of
reasonable, fair and just procedure guaranteed under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in "Hussainara Khatoon
and ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction
period of the under-trials should be as short as possible keeping in view
the nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence, reasonable
apprehension of tampering with the witness or apprehension of threat
to the complainant.
As far as involvement of the petitioner in another FIR is
concerned, the petitioner is on bail in that FIR and in this regard
reliance can be placed upon the order of this Court rendered in CRM-
M-25914-2022 titled as "Baljinder Singh alias Rock vs. State of
Punjab" decided on 02.03.2023, wherein, while referring Article 21 of
the Constitution of India, this Court has held that no doubt, at the time
of granting bail, the criminal antecedents of the petitioner are to be
looked into but at the same time it is equally true that the appreciation
of evidence during the course of trial has to be looked into with
reference to the evidence in that case alone and not with respect to the
evidence in the other pending cases. In such eventuality, strict
adherence to the rule of denial of bail on account of pendency of other
cases/convictions in all probability would land the petitioner in a
situation of denial of the concession of bail.
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5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail under Section 439
Cr.P.C. on his furnishing bail and surety bonds to the satisfaction of the
trial Court/Duty Magistrate, concerned.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
02.08.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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