Punjab-Haryana High Court
Jagtar Singh @ Jagga vs State Of Punjab on 9 January, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:002705
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202
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-42838-2023 (O&M)
Date of decision: 09.01.2024
JAGTAR SINGH @ JAGGA
...Petitioner
VERSUS
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Chandan Singh Rana, Advocate
for the petitioner.
Mr. Rajiv Verma, DAG, Punjab.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present is a third petition filed under Section 439 of the Code
of Criminal Procedure for the grant of regular bail to the petitioner in FIR
No.51 dated 17.03.2021, under Sections 379-B, 411 of the IPC; Sections 21, 29,
61, 85 of the NDPS Act and Sections 25, 27, 54, 59 of the Arms Act, registered
at Police Station Division No.6, Ludhiana, Punjab.
2. Learned counsel for the petitioner submitted that the petitioner is in
custody for about 2 years and 10 months and charges in the present case were
framed by the learned trial Court on 17.07.2023 and till date only one
prosecution witness has been examined, who was only a formal witness,
namely, Harjinder Singh, who was a person deputed to deposit the sample
before the FSL. He further submitted that not even a single prosecution witness
who was a part of the police party has been examined till date for the reasons
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best known to the State. He also submitted that the petitioner has been falsely
implicated in the present case by alleging recovery of 60 grams of
Diphenoxylate Hydrochloride, which is marginally higher than the commercial
quantity under the NDPS Act only because of the reason that earlier he was
involved in six more cases under the IPC and Arms Act. He further submitted
that be that as it may, the trial of the case is not progressing and not even a
single material witness has been examined till date and rather repeated warrants
were issued to the prosecution witnesses but they have failed to depose before
the learned trial Court for the reasons best known to them. He further submitted
that the net result of the same is that the petitioner had to face incarceration for
about 2 years and 10 months for no fault of his. He has referred to a judgment
of the Hon'ble Supreme Court in Satender Kumar Antil versus Central Bureau
of Investigation and another, [2022 (10) SCC 51] and contended that when
there is a long custody, which is not attributable to the accused and the delay
has been caused by the prosecution, then Rights under Article 21 of the
Constitution of India are effected. He also referred to another judgment of
Hon'ble Supreme Court in "Mohd. Muslim @ Hussain versus State (NCT of
Delhi)", 2023 AIR (SC) 1648, wherein the scope of Section 37 of the NDPS
Act vis-a-vis Article 21 of the Constitution of India has been discussed by
taking a serious view with regard to long trial. He further referred to a judgment
of Hon'ble Supreme Court in "Dheeraj Kumar Shukla versus The State of
Uttar Pradesh", 2023 SCC Online SC 918 and also a judgment of Hon'ble
Supreme Court in "Rabi Prakash versus The State of Odisha", Special Leave
to Appeal (Criminal) No.4169 of 2023 to contend that long custody itself is a
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ground for grant of bail notwithstanding the bar contained under Section 37 of
the NDPS Act.
3. On the other hand, Mr. Rajiv Verma, DAG, Punjab has filed the
custody certificate of the petitioner in Court today and the same is taken on
record. As per the custody certificate, the petitioner is in custody for 2 years, 9
months and 24 days. He submitted that only one prosecution witness has been
examined till date as aforesaid, who was only a formal witness. He has however
opposed the grant of regular bail to the petitioner on the ground that the
petitioner is a habitual offender and also the quantity recovered was 60 grams of
Diphenoxylate Hydrochloride, which although is marginally higher than the
commercial quantity under the NDPS Act but still the bar contained under
Section 37 of the NDPS Act will apply to the petitioner.
4. I have heard the learned counsel for the parties.
5. It is a case where the petitioner is in custody for 2 years, 9 months
and 24 days and after the framing of charges by the learned trial Court on
17.07.2023, no material witness has been examined and only one witness, who
is stated to be a person who had deposited the sample before the FSL has been
examined. During the course of arguments, learned counsel for the petitioner
submitted that the learned trial Court has repeatedly issued warrants against the
prosecution witnesses but they have not deposed before the Court till date.
6. Hon'ble Supreme Court in Satender Kumar Antil's case (supra)
has discussed this serious issue with regard to delay in trial and its effect on the
Right to Life of an individual under Article 21 of the Constitution of India. Para
49 of the aforesaid judgment is reproduced as under:-
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"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 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".
7. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case
(supra) has dealt with the issue regarding delay in trial and long custody of the
accused person vis-a-vis the bar contained under Section 37 of the NDPS Act.
The relevant portion of the aforesaid judgment contained in para Nos.19 and 20
are reproduced as under:-
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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 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.
8. The Hon'ble Supreme Court in Dheeraj Kumar Shukla's case
(supra) has observed as under:-
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"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 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."
9. The Hon'ble Supreme Court in Rabi Prakash's case (supra) has
also discussed the effect of Section 37 of the NDPS Act in such like cases of
long custody. The relevant portion of the aforesaid judgment contained in para
No.4 is reproduced as under:-
"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."
10. After hearing learned counsel for the parties and considering the
aforesaid totality and circumstances of the present case especially the long
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custody of the petitioner which is stated to be 2 years, 9 months and 24 days
and the stage of the trial, this Court is of the 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 light of the aforesaid
judgments of the Hon'ble Supreme Court.
11. Consequently, the present petition is allowed. The petitioner shall
be released on regular bail, if not required in any other case, subject to
furnishing bail bonds/surety bonds to the satisfaction of the learned trial
Court/Duty Magistrate concerned.
12. However, anything observed hereinabove shall not be treated as an
expression of opinion on the merits of the case and is meant for the purpose of
deciding the present petition only.
(JASGURPREET SINGH PURI)
09.01.2024 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:002705
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