Punjab-Haryana High Court
Sukhchain Singh @ Sony vs State Of Punjab on 15 January, 2024
Neutral Citation No:=2024:PHHC:004844
CRM-M-35351-2023 -1-
2024:PHHC:004844
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
214
CRM-M-35351-2023
Date of Decision : 15.01.2024
SUKHCHAIN SINGH @ SONY .....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Vikas Gupta, Advocate,
for the petitioner.
Mr. Jashandeep Singh, AAG, Punjab.
KULDEEP TIWARI. J.(Oral)
1. Through the instant petition, the petitioner craves for
indulgence of this Court for his being enlarged on regular bail, in case
FIR No.61 dated 08.06.2021, under Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, registered at Police Station Chohla
Sahib, District Tarn Taran.
ALLEGATIONS AGAINST THE PETITIONER
2. The learned trial Court concerned passed the following order
while declining plea of regular bail reads as under:-
"Applicant has filed the instant second bail application under
Section 439 of Code of Criminal Procedure seeking his regular bail
in the above noted case.
2. It is argued by the learned counsel for the applicant that
applicant has been falsely implicated in this case by making false
story by the police. It is submitted that the alleged 280 grams of
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heroin has planted upon the applicant without complying with the
mandatory provision and after picking the applicant from his house
to complete the target of cases at the instance of senior police
officials to settle the political score as such, noting has been
recovered from the conscious possession of the applicant. It is
submitted that applicant is suffering from chronic ailment of HIV
positive and abdomen problems in the jail as such the applicant may
be granted interim bail till the proper recovery of the applicant or till
the time report of chemical examiner is received.
3. On the other hand it is argued by the learned
Additional Public Prosecutor for the State that applicant was found
in conscious possession of 280 grams of heroin of commercial
quantity in presence of Gazetted Officer i.e. DSP. It is submitted
that it not that the applicant is found involved in a criminal case for
the first time. Rather the applicant earlier also is involved in as
many as 17 FIRs. He has submitted the list produced by ASI Mangal
Singh of Police Station Chohla Sahib. It is submitted that as per the
list FIR No.27, dated 23.01.2004, under Section 420, 120 IPC,
Police Station Chheharta, FIR No.53, dated 14.06.2012, under
Section 349 IPC, Police Station L.K.B., District Ferozepur, FIR
No.94, dated 01.07.2012, under Section 379, 413 IPC, Police
Station Makhu, District Ferozepur, FIR No.348, dated 06.08.2016,
under Section 323, 324 IPC, Police Station Civil Lines, Amritsar,
FIR No.34, dated 06.02.2018, under Section 174-A, 229-A IPC,
Police Station Sadar Tarn Taran, FIR No.45, dated 07.08.2016,
under Section 21 NDPS Act, Police Station Chohla Sahib, FIR
No.53, dated 20.08.2011, under Section 379, 411 IPC, Police
Station Chohla Sahib, FIR No.20, dated 18.02.2012, under Section
22 NDPS Act, Police Station Chohla Sahib, FIR No.46. dated
22.04.2013, under Section 22 NDPS Act, Police Station Chohla
Sahib, FIR No.52 dated 19.08.2011, under Section 61 Excise Act,
Police Station Chohla Sahib, FIR No.17, dated 18.02.2012, under
Section 379, 411 IPC, Police Station Chohla Sahib, FIR No.76
dated 13.08.2015, under Section 15, 18, 21, 22 NDPS Act, Police
Station Chohla Sahib, FIR No.20 dated, 06.04.2014, under Section
61 Excise Act, Police Station Chohla Sahib, FIR No.116, dated
30.04.2018, under Section 174-A IPC, Police Station, Sadar Tarn
Taran, FIR No.04, dated 17.01.2021, under Section 21 NDPS Act,
Police Station, Chohla Sahib, added Section 29 NDPS Act vide
Rapat No.27, FIR No.44, dated 03.04.2013, under Section 411, 414,
489-A, B, C IPC, 15,18,21,22 NDPS Act, Section 25 Arms Act,
Section 3.34 I. P. Act, Section 14, F. Act, Police Station Sarhali,
FIR No.61 dated 08.06.2021, under Section 21 NDPS Act, Police
Station Chohla Sahib, stands registered against the applicant.
Further it is submitted that since commercial quantity of heroin has
been recovered in this case FIR from the conscious possession of
applicant, the provisions of Section 37 of the NDPS Act as such are
also attracted which curtail the powers of the court to grant bail to
the accused/applicant.
4. I have considered the contentions raised by both the sides.
As per prosecution version, 280 grams of heroin has been recovered
from the conscious possession of the applicant in presence of
Gazetted Officer. Applicant earlier also is found involved in number
of FIRs mentioned above including 6 FIRs under the NDPS Act.
Applicant also has remained proclaimed offender in at least 6 FIRs
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registered against him. But neither in the bail application nor in the
affidavit attached with the bail application, has applicant disclosed
the above mentioned material facts. Apparently these facts have
been concealed intentionally with a view of get relief of regular bail.
But the quantity of heroin recovered from the applicant, herein, falls
under the commercial quantity segment and squarely the provisions
of Section 37 of the NDPS Act as such are attracted. Thus, no
ground is made out to release the applicant on bail. Present bail
application, being devoid of any merit, is hereby dismissed.
However, it is made clear that observation made herein above shall
not be construed as an expression on the merits of the main case.
Papers be tagged with the main file.
3. The main reason for declining the relief of regular bail by the
learned trial Court concerned was that the alleged recovery of contraband
falls within the category of commercial quantity, as well as the
antecedents of the petitioner, who was found to be involved in number of
other criminal matter, which includes the cases under the provisions of
NDPS Act also. In fact, the petitioner is involved in total 17 criminal
cases.
4. On dated 27.07.2023, it was informed to this Court by
learned counsel for the petitioner that the petitioner is a patient of HIV
positive, and he is not in a condition to be kept behind the bars, as he
needs regular assistance and medical interventions. This Court called for
the medical status report pertaining to the petitioner, and in compliance
thereof, a status report dated 10.08.2023 was filed on 11.08.2023. The
relevant part of the status report reads as under:-
"3. It is respectfully submitted that inmate Sukhchain
Singh S/o Dalip Singh 38 yrs male is presently conscious co-
operative well oriented to time place and person and Patient is in
ambulatory condition. He is known case of HCV+Ve and HIV +Ve.
As per previous Medical record of P.G.I Chandigarh
on dated 17.07.2017 he was operated for peripheral vascular
obstruction (i.e. clot obstructed the Blood vessel) Now today he was
complaining that mild swelling occurs at the same region so we
have referred him to G.N.D.H Amritsar for his colour Doppler scan
for arteries and veins (Blood Vessels) on duty medical officer of
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Guru Nanak Dev Hospital Amritsar checked a patient and they have
given scheduled time on 11.08.2023 at 09:00 AM for Colour
Doppler scan in Guru Nanak Dev Hospital Amritsar. As final report
from the Guru Nanak Medical College Amritsar will be received
then needful, be done accordingly. (Copy of Medical report is
attached herewith as Annexure R-1)."
5. Further, today again a fresh medical status report dated
14.01.2024, by way of an affidavit of Rahul Raja, Additional
Superintendent, Central Jail, Shri Goindwal Sahib, has been filed, which
is taken on record.
6. It reveals that the petitioner has again developed some more
complications, and the relevant extract of the affidavit (supra) reads as
under:
"3. That it is submitted that inmate Sukhchain Singh s/o Dalip
Singh aged 35 years Central Jail Sh. Goindwal Sahib as a known
case of Peripheral Arterial Diseases (Severe Claudication) was
referred to PGIMER Chandigarh on dated 18.12.2023 by the Medical
Officer of this Jail for a Vascular Surgery opinion and further
management as appointment given by the Doctors of PGIMER
Chandigarh. Patient was examined in Surgery OPD of PGIMER
Chandigarh on dated 18.12.2023 vide CR No. 20230498994. CT
Angiography (Abdomen and B/L Lower Limb) of this patient was
done on 18.12.2023. CT Angiography report which was received on
14.01.2024 revealed the following findings:
• The infrarenal abdominal aorta, bilateral common, right
external and internal iliac vessel-course, caliber and
opacification.
• Complete non-opacification of Left EIA, CFA and proximal
SFA with distal reformation at level of left distal SFA
through collaterals.
• Right CFA, SFA, DFA shows normal course calibre and
contrast opacification.
• Right popliteal artery and its branches including PTA and
peroneal arteries show normal course, calibre and contrast
opacification.
• Right ATA is attenuated in calibre in mid and distal part with
faint contrast opacification.
Left Side:
• Left CFA, Proximal SFA are not opacified with reformation
at level of distal SFA, DFA is seen formed by the collaterals.
• Left popliteal artery and its branches including ATA, PTA
and peroneal arteries shows normal calibre and contrast
opacification.
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• Few other tortuous channels are noted in the subcutaneous
plane of medial aspect of proximal thigh.
• Visualised abdominal organs are normal.
• Visualised bones are normal.
Impression
• Complete non-opacificaron of left EIA, CFA and proximal
SFA with Distal reformation as described. umar
• Attenuated Right ATA in Mid and Distal Part."
SUBMISSIONS OF LEARNED COUNSEL FOR THE
PETITIONER
7. Learned counsel for the petitioner submits that apart from the
medical condition of the present petitioner, who is in advance stage of
HIV positive, on merits also the petitioner deserves the grant of regular
bail.
He further submits that the petitioner was arrested way back
on dated 08.06.2021, whereas, the recovery is of 280 grams of heroin,
which is marginally above the commercial quantity as prescribed under
the schedule.
He further submits that the trial is still undergoing and it may
take a long time to conclude.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
8. Per contra learned State counsel opposes the asked for relief
on the ground that the petitioner is a habitual offender, and he is involved
in many other cases.
ANALYSIS
9. "Bail is the Rule and Jail is an Exception". This basic
principle of criminal jurisprudence was laid down by the Hon'ble
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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.
10. 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
jurisprudence, which is "the presumption of innocence", besides the
gravity of offence(s) involved.
11. 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 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
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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 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
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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
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case. Since the object of the detention or imprisonment of
the accused is to 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."
12. 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
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until he is found guilty and the sanctity of individual
liberty.
13. This Court has examined the instant petition on the
touchstone of the hereinabove extracted settled and legal principle(s) of
law and is of the considered opinion that the instant petition is amenable
for being allowed.
FINAL ORDER
14. Be that as it may, though the antecedents of the petitioner
does not accredit him to be released on regular bail, but considering the
fact that the recovery of contraband is just marginally above the
commercial quantity, and petitioner is behind the bars since 08.06.2021,
coupled with the fact that the petitioner on regular basis requires medical
attention being a HIV positive patient, which is supported by the medical
status report (supra), this Court, taking the lenient and sympathetic view,
deems it appropriate to grant the concession of regular bail to the
petitioner. Therefore, without commenting upon the merits and
circumstances of the present case, the present petition is allowed. The
petitioner is ordered to be released on bail, on furnishing of bail bond and
surety bond to the satisfaction of concerned Chief Judicial
Magistrate/trial Court/Duty Magistrate.
15. However, it is clarified that if in future, the petitioner is
found indulging in commission of similar offences, as are involved
herein, the respondent-State shall be at liberty to make an appropriate
application seeking cancellation of regular bail, as granted by this Court.
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Moreover, anything observed here-in-above shall have no effect on the
merits of the trial and is meant for deciding the present petition only.
(KULDEEP TIWARI)
January 15, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
Neutral Citation No:=2024:PHHC:004844
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