Punjab-Haryana High Court
Kanwarjeet Singh @ Kanwaljeet Singh @ ... vs State Of Punjab on 6 August, 2024
Author: Anupinder Singh Grewal
Bench: Anupinder Singh Grewal
Neutral Citation No:=2024:PHHC:100864-DB
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-900-2023(O&M)
Date of Decision: 06.08.2024
KANWARJEET SINGH @ KANWALJEET SINGH @ KANWAR BATH
.....APPELLANT
VERSUS
STATE OF PUNJAB
....RESPONDENT
CORAM: HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
HON'BLE MS. JUSTICE LAPITA BANERJI
Present: Mr. Himmat Singh Deol, Advocate
for the appellant.
Mr. H.S. Sullar, Sr. DAG, Punjab.
****
ANUPINDER SINGH GREWAL, J (ORAL)
CRM-31722-2023
This application has been preferred for condonation of delay of
164 days in preferring the appeal.
2. Learned counsel for the applicant-appellant submits that the
applicant-appellant was undergoing the sentence and his case was being
pursued by his aged mother, who was not well conversant with the legal
process, therefore, the delay has occurred in preferring the appeal.
3. Learned State counsel submits that the applicant-appellant has not
set out sufficient case for condoning the delay.
4. Heard.
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5. The applicant has been undergoing the sentence and is stated to be
in custody for about 02 years, 02 months and 10 days. The delay in preferring
the appeal does not appear to be intentional or deliberate. It has been held by
the Division Bench of the Bombay High Court in the case of Faizal Hasamali
Mirza Vs. State of Maharashtra and another, 2023 SCC (online) Bom 1936,
that the period of 30 days prescribed under Section 21 of the National
Investigation Agency Act, 2008 would be directory as the right to appeal is one
of the essential component of Article 21 of the Constitution of India which
guarantees protection of life and personal liberty. It has been held that in case,
the delay is not condoned then it would deprive the undertrial the right of
appeal which is provided by the Statue which impinges on the life and liberty
of the undertrial as enshrined in the Constitution of India. It was held as under:-
"(i) that the Appellate Courts have the power to condone delay beyond
the 90 days period, despite the language of the 2nd proviso to Section
21(5) of the NIA Act and that this can be done by virtue of Section 5 of
the Limitation Act, 1963, the applicability of which is not excluded
under the provisions of the NIA Act. Thus, an application seeking to
condone delay beyond 90 days in filing an appeal against the judgment,
sentence, order, not being an interlocutory order, passed by a Special
Court is maintainable, on sufficient cause being shown;
(ii) that the word 'shall' in the 2nd proviso to sub-section (5) of Section
21, be read down, to read as 'may', and hence, directory in nature."
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6. It would be in the interest of justice, if the delay is condoned and
appeal is heard and decide on merits. Consequently, the application is allowed
and delay of 164 days in preferring the appeal is condoned.
Main case
The appellant has challenged the impugned order dated
16.01.2023, whereby his application for release on bail has been declined.
2. Learned counsel for the appellant submits that the only allegation
against the appellant is that he had harboured two co-accused Deepak and
Divanshu @ Guddu who were stated to have stayed at his house for one night.
The only recovery which has been effected from the appellant is of Rs.1000/-
which is stated to have been taken from the aforesaid two persons (Rs.500/-
each) for their stay at his home. There is no recovery of firearm or any other
incriminating material from the appellant. Learned counsel further submits that
co-accused Baljit Kaur @ Sukhi and Anant Deep Singh @ Sonu have been
granted bail vide orders dated 18.12.2023 and 18.04.2024 passed in CRA-D-
471-2023 and CRA-D-665-2023 after they had undergone a period of 01 year,
06 months and 13 days and 02 years respectively.
3. Learned State counsel while referring to the reply filed by the
respondent submits that the appellant was actively involved in the conspiracy
which was hatched along with the co-accused. The main accused Nishan Singh
and other accused were alleged to have brought the arms and ammunition from
across the border. He therefore, submits that in view of the seriousness of the
involvement of the appellant in a heinous crime, he is not entitled to be
released on bail.
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4. Heard.
5. The allegations against the appellant are that he had harboured two
co-accused who were alleged to have stayed at his house for one day. It is
stated that the accused had paid a sum of Rs.1000/- which has been recovered
from the appellant. There is no recovery of firearm or any other incriminating
material/documents from the appellant. Baljit Kaur, who was also alleged to
have harboured two co-accused Deepak and Divanshu @ Guddu at her home
for 10 days has been granted benefit of bail. Co-accused Anant Deep Singh @
Sonu who was accused of providing weapons and sheltering the co-accused has
also been granted benefit of bail. The appellant has undergone an actual
sentence of 02 years, 02 months and 10 days. We are conscious of the fact that
the provisions of UAPA are stringent and bail could be granted if there are no
reasonable grounds to believe that the allegations against the accused are prima
facie true. At the same time, it is necessary to carefully scrutinize the material
against the appellant. The material against the appellant at this stage, appears to
be insufficient to justify his further incarceration, especially when none of 49
prosecution witnesses have been examined. It has been held by the Supreme
Court in the cases of Union of India Vs. K.A. Najeeb, (2021) 3 SCC 713 and
Shoma Kanti Sen Vs. State of Maharashtra and another, 2024 SCC Online
SC 498 that the long custody itself would be justified to grant bail in the cases
where the conclusion of the trial is not in sight. Reference can also be made to
the judgments of the Supreme Court in the cases of Vernon Vs. The State of
Maharashtra and another, 2023 SCC Online 885, Sheikh Javed Iqbal @
Ashfaq Ansari @ Javed Ansari Vs. State of Uttar Pradesh, bearing Criminal
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Appeal No.2790 of 2024, decided on 18.07.2024 and Javed Gulam Nabi
Sheikh Vs. State of Mahrashtra and another, bearing Criminal Appeal
No.2787 of 2024 decided on 03.07.2024.
6. In the instant case, appellant has undergone an actual sentence of
02 years, 02 months and 10 days, we therefore, have no hesitation to allow the
appeal. The appeal is allowed and the impugned order dated 16.01.2023 is set
aside. The appellant shall be released on bail subject to his furnishing requisite
bonds to the satisfaction of the Trial Court/concerned Duty Magistrate.
7. At the time of release of the appellant, the SHO, Police Station
Sohana, District SAS Nagar (Mohali) shall be informed and the appellant shall
furnish his mobile number to him and keep the location of his phone on. The
appellant shall appear before the concerned police station on first Monday of
every month till the conclusion of the trial.
8. It is clarified that observations made hereinbefore are only for the
purpose of deciding the instant appeal at this stage and shall not be construed
to be an expression of opinion on the merits of the case.
(ANUPINDER SINGH GREWAL)
JUDGE
(LAPITA BANERJI)
JUDGE
06.08.2024
Prince
Whether speaking/ reasoned : Yes/No
Whether Reportable : Yes/No
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