Punjab-Haryana High Court
Vishal @ Pali vs State Of Punjab on 21 March, 2024
Neutral Citation No:=2024:PHHC:041518
2024:PHHC:041518
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
229 CRM-M-13734-2024
Date of Decision : March 21, 2024
VISHAL @ PALI -PETITIONER
V/S
STATE OF PUNJAB -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Ms. Gurmeet Kaur, Advocate
for the petitioner.
Mr. Raghav Garg, A.A.G, Punjab.
***
KULDEEP TIWARI, J. (ORAL)
1. Through the instant petition, the petitioner craves for indulgence
of this Court for him being enlarged on regular bail, in case FIR No.88 dated
26.11.2023, under Sections 21, 27(a) and 61 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as the 'N.D.P.S.
Act'), registered at P.S. Tibber, District Gurdaspur.
ALLEGATION AGAINST THE PETITIONER
2. The allegation against the petitioner, as levelled in the present
FIR, is that, 06 grams of heroin was recovered from him.
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 implicated in the present case;
(ii) Non-compliance and infringement of the mandatory
provisions, as enshrined in Section 50 of the N.D.P.S. Act, which
renders the alleged recovery of contraband to be covered by
1 of 8
Neutral Citation No:=2024:PHHC:041518
CRM-M-13734-2024 2 2024:PHHC:041518
clouds of suspicion;
(iii) Nonetheless, even if assumingly, the recovery is taken to be
validly effected, even then the recovered quantity is marginally
higher than the prescribed small quantity, inasmuch as, 6 grams
of heroin has allegedly been recovered, whereas, its prescribed
small quantity is 5 grams;
(iv) A perusal of the FIR discerns that the investigating officer
concerned had weighed the allegedly recovered contraband along
with the polythene, wherein, it was found carried. Therefore, had
the allegedly recovered contraband been weighed after taking it
out from the polythene, its quantity may have fallen within the
category of "small quantity", which is a bailable offence.
(v) Petitioner has undergone incarceration of approx. 3½
months;
(vi) Investigation stands completed, whereupon, Final Report has
also been presented on 20.03.2024;
(vii) the trial is not likely to conclude anytime soon, as charges
have not yet been framed, therefore, keeping the petitioner behind
the bars would serve no gainful purpose;
SUBMISSIONS OF THE LEARNED STATE COUNSEL
5. 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 Superintendent of Central Jail, Gurdaspur. Placing heavy reliance upon
the criminal antecedents of the petitioner, as revealed in the custody certificate
(supra), inasmuch as, him being involved in a couple of similar criminal cases,
he has opposed the grant of regular bail to the petitioner, being a habitual in
2 of 8
Neutral Citation No:=2024:PHHC:041518
CRM-M-13734-2024 3 2024:PHHC:041518
trade of narcotics.
6. The learned State counsel has, on instructions imparted to him by
the official concerned, has confirmed that charges are yet to be framed.
ANALYSIS
7. "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.
8. 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.
9. 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
3 of 8
Neutral Citation No:=2024:PHHC:041518
CRM-M-13734-2024 4 2024:PHHC:041518
[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 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
4 of 8
Neutral Citation No:=2024:PHHC:041518
CRM-M-13734-2024 5 2024:PHHC:041518
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
5 of 8
Neutral Citation No:=2024:PHHC:041518
CRM-M-13734-2024 6 2024:PHHC:041518
circumstances of each particular 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."
10. 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.
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.
6 of 8
Neutral Citation No:=2024:PHHC:041518
CRM-M-13734-2024 7 2024:PHHC:041518
12. The reason for forming the above inference emanates from the
factum that:- (i) as per custody certificate (supra), though the petitioner is
involved in a couple of other similar criminal cases, however, either he has
been granted the concession of bail in those cases or has undergone the
sentence awarded to him; (ii) the allegedly recovered contraband (6 grams) is
marginally higher than the prescribed small quantity (5 grams); (iii) though the
issue, as raised by the learned counsel for the petitioner that, had the allegedly
recovered contraband been weighed without the polythene, wherein, it was
found contained, it may have fallen within the domain of "small quantity", is to
be adjudicated by the learned trial Court concerned, after appreciation of
evidence, which may become adduced before it, however, at this stage, the
petitioner deserves the benefit of doubt; (iii) since charges are yet to be framed,
therefore, no fruitful purpose would be served by keeping the petitioner behind
the bars, who has undergone actual custody of approx. 03 months and 22 days.
13. Insofar as non-compliance and infringement of Section 50 of the
N.D.P.S Act is concerned, it is also a highly debatable issue, which is to be
addressed by the learned trial Court concerned, after appreciating the evidence,
which may become adduced before it.
FINAL ORDER
14. Considering the hereinabove made discussion, this Court 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
7 of 8
Neutral Citation No:=2024:PHHC:041518
CRM-M-13734-2024 8 2024:PHHC:041518
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. 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)
March 21, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
8 of 8
