Punjab-Haryana High Court
Bina Kumari vs State Of Punjab on 5 August, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
1
207
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-43400-2023
DATE OF DECISION: 05.08.2024
BINA KUMARI ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Kashav Chadha, Advocate and
Mr. Ruhani Chadha, Advocate for the petitioner.
Mr. Rajiv Verma, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 439 Cr.P.C.,
has been invoked for the grant of regular bail to the petitioner in case
FIR No. 186, dated 11.09.2019, under Sections 18 of The Narcotic
Drugs and Psychotropic Substances Act, 1985 (Section 29 of the NDPS
Act added later on) registered at Police Station Goraya, District
Jalandhar.
2. Prosecution story set up in the present case as per the
version in the FIR read as under :-
'Today, Sl was present at the Police Station and then SI
Jagdish Raj 798/TT through mobile informed me that he along
with ASI Om Prakash 384, ASI Jaswant Singh 861, C Gurpreet
Singh 1704 and St Surjeet Singh 356, HC Jasvir Singh 386. C
Gurwinder Singh 1892 and fourth class Harjeet Singh are
patrolling in a private vehicle in search of bad and suspicious
1 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
persons and had done Nakabandi at National Highway near DK
Morya Dhaba, raqba Kutbewal and were present on the GT road
which was going from Phillaur to Phagwara and was doing the
checking of vehicles and then one Scorpio car colour white
bearing no. PB02-CA-4229 was seen coming from Phillaur side.
SI along with the help of other police officials signalled the said
car to stop, but the driver of the car immediately applied the
brakes and tied to reverse the car back and tried to ran away
The person who was sitting next to the driver seat after opening
the windows of the car threw one heavy polythene on the side of
the road. Si along with the help of other police officials
apprehended the above said car by surrounding the said vehicle
and brought down the person who was driving the car and asked
him about his name and address and then the person who was
driving the car disclosed his name as Karamjit Singh S/O Teja
Singh ro village Nijjar. PS Kalchiya. District Amritsar and the
person who was sitting next to driver seat disclosed his name as
Gurpreet Singh @ Lovely S/O Rawal Singh R/O Village Chungi,
PS Mehta, District Amritsar I on asking accused Karamjit Singh
and Gurpreet Singh that what they had thrown out of the car in
polythene and they said that the said polythene is having opium
As per new guidelines you are being informed, you reach at the
spot for investigation. On this SI along with HC Jaswinder
Singh 389 reached at the spot where SI Jagdish Raj disclosed me
about the circumstances orally and the Si disclosed his name,
rank and place of posting to the apprehended persons and asked
them about name and address and the driver of the car disclosed
his name as Karamjit Singh S/O Teja Singh r/o village Nijjar, PS
Kalchiya, District Amritsar and the second person disclosed his
name as Gurpreet Singh @ Lovely S/O Rawal Singh R/O Village
Chungi, PS Mehta, District Amritsar. On my instructions
Karamjit Singh and Gurpreet Singh who had thrown polythene
outside, picked up the same and presented before me. Before
2 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
searching the polythene SI tried to join independent witness from
public, but everyone showed their helplessness. St at the spot
tried to make join Sarpanch, Panch and Numberdar of Village
Atta, Mansoorpur, Ratbewal, but even they could not be made as
witness. Then Sl in presence of other police officials after
opening the mouth of recovered plastic polythene, checked the
same and the same was having opium. Arrangements of bringing
electronic weighing machine was being done by C Gurpreet
Singh 1704 and on weighing the weight of the same came out to
be 3kg 500 grams. The recovered opium was being put in one
plastic box and the parcel was prepared on which Sl affixed his
seal KS and form M-29 was prepared and separate parcel was
also prepared. After affixing the seal the same was handed over
to SI Jagdish Raj 798. The reovered parcel of opium and car
bearing no. PB02-CA-4229 make Scorpio was being taken into
Police possession vide separate recovery memo. On the memo
the witness affixed their signature. On the spot Karamjit singh
and Gurpreet Singh for keeping in their possession 3kg 500
grams of opium and they coul not produce any license. Accused
Karamjit singh and Gurpreet Singh for keeping in their
possession 3kg 500 grams of opium have committed an offence
under section 18-61-85 of NDPS, Act. After registering the ruqa
the same is being sent to the police station at the hands of C
Gurpreet Singh 1704. After registering the FIR, the number may
be intimated. Special reports be prepared and sent to senior
police officials. Control room may be intimated through
wireless. Si along with other police officials are present at the
spot. Sd/- Kulwant Singh SI, PS Goraya, dated 11.09.2019,
raqba GT Rutbewal at 7:30am, Latitude-31.0900506,
Longitude-75.779842.'
3 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been falsely implicated in this case. He submits that no
recovery has been effected from the petitioner and he was named only
on the basis of disclosure statement of the co-accused namely Karamjit
@ Karanjit Singh who is the husband of the petitioner. The petitioner
has been in custody for last almost 8 months and is not involved in any
other case. He submits that investigation is complete as supplementary
challan stands presented on 11.10.2023 and charges have been framed
on 23.03.2024. He has further argued that no fruitful purpose would be
served by keeping the petitioner behind the bars as conclusion of trial
would take long time as out of total 14 Prosecution Witnesses, only one
witness has been examined so far. He further points out that the main
accused Karamjit @ Karanjit Singh has already been granted the
concession of regular bail by this Court vide order dated 09.01.2023
passed in CRM-M-35738-2022 and another co-accused namely
Gurpreet Singh @ Lovely has also already been granted the concession
of regular bail by this Court vide order dated 10.04.2023 passed in
CRM-M-4014-2023.
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 last 7 months and
4 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
29 days.
Learned State Counsel submits on instructions from the
Investigating Officer opposes the prayer for grant of regular bail on the
ground that the petitioner had earlier been declared P.O. vide order dated
09.02.2023 and later was arrested on 07.06.2023 but is not in a position
to controvert the submissions made by counsel for the petitioner.
4. Analysis
From the above case it can be culled out the petitioner has
already suffered sufficient period in custody i.e. 7 months and 29 days,
the petitioner is not involved in any other case, meaning thereby he is
not a habitual offender, co-accused have already been granted
concession of regular bail, the petitioner was named on the basis of
disclosure statement 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 11.10.2023 and charges have been framed on 23.03.2024,
out of 14 prosecution witnesses, only one PW 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 would solve no purpose.
Reliance can be placed 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:-
5 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
"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
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.
6 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
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
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
7 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
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."
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.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail under Section 439
8 of 9
Neutral Citation No:=2024:PHHC:099764
CRM-M-43400-2023
Cr.P.C. on his/her 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
05.08.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
9 of 9
