Punjab-Haryana High Court

Vinod Kumar vs State Of Haryana on 9 January, 2024

                                                          Neutral Citation No:=2024:PHHC:003743




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CRM-M-59055-2023                                                        1

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                               CHANDIGARH

                                      ***

                                       CRM-M-59055-2023
                                       Date of Decision: 09.01.2024

VINOD KUMAR                                                 -PETITIONER

                                    Versus

STATE OF HARYANA                                            -RESPONDENT

CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI

Argued by: Mr. Pratap Singh Gill, Advocate
           for the petitioner.

             Mr. Bhupender Singh, D.A.G., Haryana.

                                      ***

KULDEEP TIWARI, J.

1. Through the instant petition, the petitioner craves for indulgence

of this Court for his being enlarged on regular bail, in case FIR No.222 dated

15.05.2021, under Section 420 of the IPC, and, Section 22-C of the N.D.P.S.

Act, registered at P.S. Civil Line, Kaithal, District Kaithal.

ALLEGATIONS IN THE FIR

2. Succinctly stated, the allegations, as levelled in the FIR, are

that pursuant to a secret information, a police party, on 15.05.2021,

conducted raid in the house of one Vikram Singh, where said Vikram Singh

was found present along with the present petitioner, and, 207 tablets of

Addnok-NNRX Buprenorphine 2 mg and Naloxone 0.5 mg total weight 22.77

grams, which falls in "commercial quantity", 22 bottles of Pheniramine

Maleate Inj. I.P.N-Vil injection (Veterinary use only for intramuscular

injection only) 100 mls, 53 bottles of Pheniramine Maleate Inj. I.P.N. Vil

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Injection (Veterinary use only for intramuscular injection), 22 bottles of

Pheniramine Maleate Inj. I.P.N-Vil injection, were recovered.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER

3. The learned counsel for the petitioner, in his asking for the

hereinabove extracted relief, has made the following submissions:-

(i) Petitioner has been falsely entangled in the instant FIR,

as, despite the alleged raid being conducted in broad daylight

and that too in a residential area, no independent witness was

joined by the police party while effecting the alleged recovery;

(ii) Co-accused Vikram Singh, from whose house, the alleged

contraband was recovered, has been enlarged on regular bail

by a Co-ordinate Bench of this Court, vide order dated

06.11.2023, drawn in CRM-M-50682-2022;

(iii) Since case of the petitioner is on better footing than co-

accused Vikram Singh, who has already been granted

concession of regular bail, the petitioner also deserves being

treated at par;

(iv) Petitioner has suffered incarceration of more than 2½

years;

(v) By placing reliance upon Annexures P-4 to P-12, which

encompasses the zimni orders of trial court, he submits that despite

issuance of multiple bailable and non-bailable warrants, trial is

moving at a snail's pace, as out of total 20 prosecution witnesses,

only 6 prosecution witnesses have been examined so far, therefore,

trial is not likely to conclude anytime soon and keeping the

petitioner behinds the bars would serve no purpose;

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SUBMISSIONS OF THE LEARNED STATE COUNSEL

4. Per contra, the learned State counsel, who is in receipt of advance

notice, has placed on record the custody certificate of the petitioner, as issued

by the Deputy Superintendent, District Prison, Kaithal. He has vociferously

opposed the grant of regular bail to the petitioner, on the ground, that the

recovery contraband falls within the category of "commercial quantity", and,

his earlier petition for regular bail, i.e. CRM-M-12117-2022, has been

dismissed by a Co-ordinate Bench of this Court, vide order dated 18.05.2022.

However, neither he has contested the factum qua the petitioner being behind

the bars for more than 2½ years, nor has contested the factum qua examination

of only 6 prosecution witnesses out of total 20 prosecution witnesses, nor has

contested the factum qua grant of regular bail to the co-accused of the

petitioner.

ANALYSIS

5. "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.

6. 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

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jurisprudence, which is "the presumption of innocence", besides the gravity

of offence(s) involved.

7. 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 [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that 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 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

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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 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

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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."

8. 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 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.

9. Also, Hon'ble Supreme Court in "Satender Kumar Antil

versus Central Bureau of Investigation and another", 2022(10) SCC 51,

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:-

"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

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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".

10. The Hon'ble Supreme Court in "Rabi Prakash Versus The

State of Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023,

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."

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11. This Court has examined the instant petition on the touchstone

of the hereinabove extracted settled legal principle(s) of law and is of the

considered opinion that the instant petition is amenable for being allowed.

12. The reason for forming the above inference emanates from the

factum that:- (i) the custody certificate (supra) reveals that the petitioner has

undergone actual custody of 02 years 07 months and 23 days as on today; (ii)

co-accused Vikram Singh has already been granted the concession of regular

bail; (iii) there is no likelihood of the trial concluding anytime soon, as the

trial is moving at snail's pace, as is evident from the zimni orders (Annexures