Punjab-Haryana High Court
Navjot Singh @ Nav vs State Of Punjab on 11 January, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:003379
CRM-M-31713-2023 -1-
2024:PHHC:003379
204
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-31713-2023
Date of decision: 11.01.2024
NAVJOT SINGH @ NAV
...Petitioner
VERSUS
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Ruhani Chadha, Advocate
for the petitioner.
Mr. Rajiv Verma, DAG, Punjab.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present is a second petition filed under Section 439 of the
Code of Criminal Procedure for the grant of regular bail to the petitioner in FIR
No.323 dated 09.11.2020, under Sections 22-C and 29 of the NDPS Act,
registered at Police Station Kathu Nangal, District Amritsar, Punjab.
2. Learned counsel for the petitioner submitted that the petitioner is in
custody for about 2 years and 11 months. Learned counsel for the petitioner
further submitted that the petitioner has clean antecedents and is not involved in
any other case under the NDPS Act and he has been falsely implicated by the
police in the present case. He also submitted that earlier the petitioner was
granted interim bail by this Court on the ground of surgery of his wife and he
availed the interim bail and he has now surrendered back in time and has not
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violated any of the conditions of interim bail and the aforesaid custody period is
after excluding the period of two months of interim bail. He also submitted that
as per the prosecution story, the police had apprehended two persons, namely,
Gursahib Singh and Avtar Singh and from them there was recovery of 11,400
intoxicant tablets and 10,200 intoxicant tablets, respectively, and both the
aforesaid co-accused, who were apprehended along with the aforesaid
contraband have since been released on default bail under Section 167 Cr.P.C.
Thereafter, one of the aforesaid co-accused, namely, Gursahib Singh from
whom recovery was effected disclosed the names of several persons out of
which one co-accused was Sanjeev Kumar @ Raja and the aforesaid Sanjeev
Kumar @ Raja disclosed the name of the present petitioner and in this way, the
name of the petitioner has cropped up only on the basis of second disclosure
statement. He further submitted that thereafter, on the basis of disclosure
statement of the petitioner, some of the other co-accused, namely, Dilpreet
Singh and Surinder Singh @ Sonu were nominated from whom there was a
recovery of 3,46,000 intoxicant tablets. He further submitted that there is no
material available with the prosecution to connect the petitioner with the present
offence except for disclosure statement of co-accused, which is otherwise not
admissible in evidence per se in view of the judgment of Hon'ble Supreme
Court in Tofan Singh versus State of Tamil Nadu, 2021 (4) SCC 1. He also
submitted that after the arrest of the petitioner, a recovery of about 49,000
intoxicant tablets were planted upon the petitioner by stating that the same was
recovered from the house of the petitioner.
3. Learned counsel for the petitioner further submitted that be that as
it may, the submission which he has made that the petitioner has clean
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antecedents and is not involved in any other case under the NDPS Act and he
has been falsely implicated in the present case by the police is further
substantiated from the fact that in the present case the learned trial Court has
framed charges on 06.06.2022 and more than 1 year and 7 months have elapsed
and only one prosecution witness has been examined and the material witnesses
are not coming forth for deposition despite summons and warrants being issued
by the learned trial Court repeatedly. He further submitted that there is no
justification as to why after putting the criminal law into motion, the police
officials who are the prosecution witnesses have failed to depose before the
Court and the net result of the same is that the petitioner had to face
incarceration for about 2 years and 11 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
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custody itself is a ground for grant of bail notwithstanding the bar contained
under Section 37 of the NDPS Act.
4. On the other hand, Mr. Rajiv Verma, DAG, Punjab submitted that it
is correct that the petitioner is in custody for about 2 years and 11 months. He
further submitted that so far as the antecedents of the petitioner is concerned, he
has instructions to state that he is not involved in any other case under the
NDPS Act but is involved in one case under the Prisons Act. He has filed short
reply by way of an affidavit of Deputy Superintendent of Police, Sub-Division
Majitha, District Amritsar (Rural) in Court today and the same is taken on
record. While referring to the said short reply, he submitted that the petitioner
has clean antecedents. He has however opposed the grant of regular bail to the
petitioner on the basis of Section 37 of the NDPS Act since the quantity
involved in the present case not only falls in the category of commercial
quantity but also is a huge quantity.
5. I have heard the learned counsel for the parties.
6. It is a case where the petitioner is in custody from about 2 years
and 11 months. Undoubtedly, the total recovery from all the accused in the
present case is very large and so far as the petitioner is concerned, recovery
from him is stated to be about 49,000 intoxicant tablets from his house.
Therefore, this Court will deal with the applicability of Section 37 of the NDPS
Act qua the present petitioner. The petitioner was nominated on the basis of
disclosure statement of aforesaid co-accused, namely, Sanjeev Kumar @ Raja.
After about six days, recovery of 49,000 intoxicant tablets was shown from the
house of the petitioner at the instance of the petitioner himself. The petitioner is
stated to be not involved in any other case under the NDPS Act except in one
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case under the Prisons Act. The charges in the present case were framed by the
learned trial Court on 06.06.2022 and more than 1 year and 7 months have
elapsed and only one prosecution witness has been examined and the learned
trial Court has been adjourning the case for summoning the prosecution
witnesses and even issued bailable warrants as per the learned counsel for the
petitioner. Therefore, the long custody of the petitioner itself would be a
relevant factor for the purpose of application of Section 37 of the NDPS Act.
7. 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:-
"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
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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".
8. 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:-
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
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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.
9. The Hon'ble Supreme Court in Dheeraj Kumar Shukla's case
(supra) has observed as under:-
"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."
10. 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:-
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"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."
11. In the peculiar facts and circumstances of the present case, the
petitioner who is stated to be not involved in any other case under the NDPS
Act has already faced incarceration for about 2 years and 11 months and more
than 1 year and 7 months have elapsed after the framing of the charges and only
one prosecution witness has been examined as per the learned counsel for the
parties. The petitioner was nominated on the basis of disclosure statement of co-
accused, namely, Sanjeev Kumar @ Raja. Apart from the above, it has been so
stated in para No.8 of the aforesaid short reply filed by the State that there is a
strong apprehension that the petitioner can misuse the concession of regular bail
by absconding from the trial. However, during the course of arguments, a query
was raised to the learned State counsel as to on what material and on what basis
the strong apprehension has been expressed in the short reply particularly
considering the fact that the petitioner has clean antecedents, to which he could
not offer any explanation as to what was the material on the basis of which the
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aforesaid apprehension has been expressed by the Deputy Superintendent of
Police, Sub-Division Majitha, District Amritsar (Rural) in this regard. Another
query was also raised to the learned State counsel as to what was the
justification as to why after the framing of the charges on 06.06.2022, only one
prosecution witness has been examined, which has resulted in prolonged
incarceration of the petitioner for about 2 years and 11 months, to which also he
could not offer any explanation.
12. Therefore, this Court is of the view that considering the aforesaid
totality and circumstances of the present case, 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 the light of the aforesaid judgments of the
Hon'ble Supreme Court.
13. 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.
14. 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)
11.01.2024 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
Neutral Citation No:=2024:PHHC:003379
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