Punjab-Haryana High Court
Surjit Singh vs State Of Punjab on 9 May, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:064822
CRM-M-11961-2024 -1-
203
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-11961-2024
Date of decision: 09.05.2024
SURJIT SINGH ...Petitioner
VERSUS
STATE OF PUNJAB ...Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Ms. Rajwinder Kaur Sandhu, Advocate for
Mr. G. S. Sandhu, Advocate for the petitioner.
Mr. Adeshwar Singh Pannu, AAG, Punjab.
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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.254 dated 07.09.2022, under Sections 15, 29, 61, 85 of the NDPS Act,
registered at Police Station City-1, Abohar, District Fazilka, Punjab.
2. Learned counsel appearing on behalf of the petitioner submitted
that the petitioner is in custody for about 1 year and 8 months and the
allegations against the petitioner were pertaining to 92 kgs. of poppy husk. She
further submitted that the petitioner has been falsely implicated in the present
case and he has clean antecedents and is not involved in any other case and
even otherwise also, charges in the present case were framed by the learned trial
Court on 18.04.2023 and till date only 2 prosecution witnesses have been
examined out of total 17 cited prosecution witnesses and those 2 witnesses who
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have been examined are also formal witnesses and none of the material
witnesses has been examined.
3. Learned counsel appearing on behalf of the petitioner has referred
to a judgment of 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 affected. She 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. She further referred to the judgments of
Hon'ble Supreme Court in "Dheeraj Kumar Shukla versus The State of Uttar
Pradesh", 2023 SCC Online SC 918 and "Rabi Prakash versus The State of
Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023 to contend that
long custody itself is a ground for grant of bail notwithstanding the bar
contained under Section 37 of the NDPS Act. She also submitted that
considering the aforesaid facts and circumstances and in view of the aforesaid
judgments of Hon'ble Supreme Court, the petitioner may be considered for the
grant of regular bail.
4. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab
submitted on instructions from ASI Sukhwinder Singh that it is correct that the
petitioner is in custody for about 1 year and 8 months and after the framing of
the charges by the learned trial Court on 18.04.2023, only two formal witnesses
have been examined. He further submitted that it is also correct that the
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petitioner has clean antecedents and he is not involved in any other case. He has
however submitted that since the quantity recovered from the petitioner was 92
kgs. of poppy husk, which falls in the category of commercial quantity, the
prayer of the petitioner is hit by the bar contained under Section 37 of the
NDPS Act.
5. I have heard the learned counsel for the parties.
6. The petitioner is in custody for about 1 year and 8 months and
more than one year has elapsed after the framing of the charges and only two
formal witnesses have been examined but none of the witnesses who was part
of the police party has been examined till date. The petitioner is stated to be not
involved in any other case and has clean antecedents.
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
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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".
8. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case
(supra) has dealt with this issue with regard to 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
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
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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:-
"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. After hearing learned counsel for the parties, this Court is of the
considered view that 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 light of the aforesaid judgements of Hon'ble Supreme Court
considering the custody of the petitioner, stage of the trial and his clean
antecedents.
12. 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.
13. 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)
09.05.2024 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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