Punjab-Haryana High Court
Lakhwinder Singh @ Lakha vs State Of Punjab on 21 March, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:040993
2024:PHHC:040993
CRM-M-51890-2023 -1-
202
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
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CRM-M-51890-2023
Date of Decision: 21.03.2024
Lakhwinder Singh @ Lakha .....Petitioner
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. L.S. Sekhon, Advocate
for the petitioner.
Mr. A.S. Pannu, AAG, Punjab.
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JASGURPREET SINGH PURI, J. (Oral)
1. The present is a third petition filed under Section 439 of the
Code of Criminal Procedure for grant of regular bail to the petitioner in case
bearing FIR No.106 dated 26.07.2022, under Section 15 of the NDPS Act,
1985, registered at Police Station City-I, Sangrur, District Sangrur.
2. It has been submitted by learned counsel for the petitioner that
this is the third bail petition filed by the petitioner and the earlier two
petitions were dismissed as withdrawn on 05.12.2022 and on 07.07.2023
vide Annexures P-3 & P-4, respectively. He further submitted that it is a case
where the petitioner is in custody for 1 year and 7 months and in the present
case, the charges were framed by the learned trial Court on 06.03.2023
which is more than one year ago, but till date not even a single witness has
been examined. He has referred to the interlocutory orders which have been
passed by the learned trial Court and photocopies of the same have been
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produced before this Court which are taken on record and mark as 'X'.
While referring to the aforesaid zimni orders, he submitted that more than
one year has elapsed after the framing of charges and not even a single
prosecution witness has been examined except one prosecution witness, who
has been examined-in-chief and that too partly. He also submitted that the
learned trial Court was constrained to issue bailable warrants against the
prosecution witnesses for nine times and still they did not bother to depose
before the Court.
3. Learned counsel for the petitioner further submitted that as per
the allegations, the petitioner along with one other co-accused were coming
from a car and there was a recovery of 70 kgs. of Poppy Husk from the seat
of the car and as per the allegations, the other co-accused had run away but
the petitioner was apprehended on the spot. He also submitted that in fact the
present case was planted upon the petitioner and the petitioner is having
clean antecedents and he is not involved in any other case and considering
the aforesaid facts and circumstances, even if the aforesaid quantity is
marginally higher than the commercial quanitity under the NDPS Act, the
bar contained under Section 37 of the NDPS Act will not apply to the
present petitioner in the facts and circumstances of the present case and also
in the light of the judgments of the Hon'ble Supreme Court passed in
"Satender Kumar Antil Vs. Central Bureau of Investigation and another",
2022(10) SCC 51, "Mohd. Muslim @ Hussain Vs. State (NCT of Delhi)",
2023 AIR(SC) 1648, "Dheeraj Kumar Shukla Vs. The State of Uttar
Pradesh" 2023 SCC Online SC 918 and "Rabi Prakash Vs. The State of
Odisha" in Special Leave to Appeal (Criminal) No.4169 of 2023.
4. On the other hand, Mr. A.S. Pannu, learned AAG, Punjab stated
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that it is correct that the petitioner has faced incarceration for 1 year and 7
months and it is also correct that he has clean antecedents and is not
involved in any other case. He has however opposed the grant of regular bail
to the petitioner on the ground that the recovered quantity from the petitioner
was 70 kgs. of Poppy Husk, which falls in the category of commercial
quantity, and therefore, the prayer of the petitioner is hit by the bar contained
under Section 37 of the NDPS Act.
5. I have heard the learned counsels for the parties.
6. It is a case where the custody of the petitioner comes out to be 1
year and 7 months and as per both the learned counsels for the parties, the
petitioner is having clean antecedents and is not involved in any other case.
The alleged recovery from the car where the petitioner was travelling was 70
kgs. of Poppy Husk which is marginally higher than the commercial quanity
under the NDPS Act. The charges in the present case were framed on
06.03.2023, and a perusal of the aforesaid interlocutory orders which have
been passed by the learned trial Court after the framing of the charges,
would show that about nine times the trial Court had issued bailable
warrants against the prosecution witnesses, who are none other but the
police officials, who had set the criminal law into motion. It appears that the
delay in trial has been caused not because of the fault of the petitioner but at
the fault of the prosecution. Till date, none of the prosecution witness has
been examined except one prosecution witness, who has been examined-in-
chief and that too partly.
7. During the course of arguments, a specific query was raised to
learned AAG, Punjab as to what is the justification with regard to non-
appearance despite number of times, bailable warrants were issued against
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the prosecution witnesses to which he could not justify the same.
8. Hon'ble Supreme Court in Satender Kumar Antil's case (supra)
discussed this issue with regard to delay in trial and its effect on the right to
life under Article 21 of the Constitution of India. Para No.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 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."
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9. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case
(supra) also discussed the issue with regard to delay in trial and the long
custody of the accused person vis-a-vis the bar contained Section 37 of the
NDPS Act. The relevant Paras of the aforesaid judgment 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 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
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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."
10. Similarly, Hon'ble Supreme Court in Dheeraj Kumar Shukla's
case (supra) has opined 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."
11. Thereafter, Hon'ble Supreme Court in Rabi Prakash's case
(Supra) has dealt with the issue of prolonged incarceration. The relevant
portion of the judgment is reproduced as below:
"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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12. After hearing the learned counsels for the parties and
considering the objection raised by the learned State Counsel pertaining to
Section 37 of the NDPS Act, this Court is of the considered view that in
view of the aforesaid peculiar facts and circumstances, the petitioner has
already faced incarceration for 1 year and 7 months and till date, not even a
single prosecution witness has been examined and the petitioner has clean
antecedents and is not involved in any other 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 view of the aforesaid
judgments of the Hon'ble Supreme Court of India on the issue. Therefore,
this Court deems it fit and proper to grant regular bail to the petitioner.
13. Consequently, the present petition is allowed and the petitioner
is ordered to be released on regular bail on furnishing bail bond/surety bond
to the satisfaction of the trial Court/Duty Magistrate concerned, if not
required in any other case.
14. However, anything observed hereinabove shall not be treated as
an expression of opinion on merits of the case and is only meant for the
purpose of decision of present petition.
21.03.2024 (JASGURPREET SINGH PURI)
Bhumika JUDGE
1. Whether speaking/reasoned: Yes/No
2. Whether reportable: Yes/No
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