Punjab-Haryana High Court
Harmandeep Singh Alias Harman vs State Of Punjab on 9 May, 2024
Neutral Citation No:=2024:PHHC:064962
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
222
CRM-M-15699-2024
Date of decision: 09.05.2024
HARMANDEEP SINGH ALIAS HARMAN ....Petitioner
Versus
STATE OF PUNJAB ...Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Ms. Rishma Verma, Advocate
for the petitioner.
Mr. Akshay Kumar, 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.116 dated
05.06.2014, under Sections 22/27/61/85 of the NDPS Act, registered at Police
Station Sadar, Jalandhar.
ALLEGATIONS AGAINST THE PETITIONER
2. A perusal of the FIR reflects that the petitioner, and other two co-
accused were arrested by the Police, who were carrying some intoxicating substance,
which were later on discovered as diphenoxylate Hydrochloride. The recovery
which was effected from the present petitioner was 55 grams of intoxicant powder,
and, whereas, from the co-accused Sandeep 150 grams of intoxicant powder was
recovered. Therefore, the total recovery which was effected from the three persons
falls within the ambit of commercial quantity. Earlier in the instant matter,
petitioner was granted bail, however, due to his absence before the learned trial
Court concerned, he was declared as proclaimed offender on 13.10.2016. On
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21.01.2024, the petitioner was finally arrested, and since then he is behind the bars,
and is facing trial in the FIR in question.
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) The petitioner is suffering from hapatitis-B, and therefore, his
condition is very bad, and is unable to do his day-to-day activities in
the jail, without any help;
(ii) The co-accused Sandeep was acquitted by the learned trial Court
concerned, vide judgment dated 06.03.2017, whereas the third co-
accused Talwinder Singh @ Sonu has in fact died, during the
pendency of the trial.
(iii) On the same set of allegations, once the co-accused has earned
acquittal, therefore, there is no likelihood that the petitioner shall be
convicted;
(iv) Petitioner has suffered incarceration of more than 09 months, as
on today.
(v) The petitioner is not involved in any other case.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. Status report by way of affidavit dated 08.05.2024, of Sh. Sukhninder
Singh, Assistant Commissioner of Police, Sub Division V, Cantt Jalandhar,
Commissionerate Jalandhar has been filed on behalf of respondent-State. The same
is taken on record.
5. Medical status report by way of affidavit dated 08.05.2024, of Sh.
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Kulwant Singh, Superintendent of Central Jail, Kapurthala has been filed on behalf
of respondent-State. The same is taken on record.
6. As per the medical status report, the petitioner is suffering from
hapatitis. The relevant part of the report reads as under:-
"On dated 04/03/2024, he was referred to Civil Hospital Kapurthala.
He got admitted to Civil Hospital Kapurthala from where he was
further referred on dated 06/03/2024 to Government Medical College
and Hospital Amritsar and he got admitted the same day. His chief
complaint was yellowish discoloration of eyes, fever and bleeding from
nose, for which he was treated. All his routine blood tests were done
throughout his course of admission, which came out to be normal
towards the end of his date of discharge from the GMC Amritsar. His
ultrasound abdomen was performed which showed splenomegaly. His
CECT abdomen was performed which showed hepatomegaly +
hepatitis, abdominal lymphadenopathy, thickened ilio-caecal junction.
He was prescribed oral medications for the same. On dated 25/03/2024,
he was discharged from Government Medical College and Hospital
Amritsar. He was prescribed oral anti-tubercular medicines and other
oral medications with all blood tests within normal limits and vitals
stable."
7. The learned State counsel has placed on record the custody certificate
issued by the Superintendent of Central Jail, District Kapurthala. The same is taken
on record. A perusal of the custody certificate reveals that petitioner is not
involved in any other case. A perusal of the custody certificate further reveals that
the petitioner has suffered incarceration of 09 months, and 23 days, as of today.
ANALYSIS
5. Before embarking upon the process of evaluating the arguments
addressed by the learned counsels for the parties and penning down any opinion
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upon the instant petition, it is deemed imperative to capture an overview of some
significant legal propositions.
6. "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.
7. 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.
8. In "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2 SCC 565
at 586-588, the purpose of granting bail is set out by the Hon'ble Supreme Court
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, AIR 1924 Calcutta 476
(479, 480) 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
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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
Allahabad 504 (SB) 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. H.L. Hutchinson, AIR 1931 Allahabad
356 at p. 358 it was said that it was very unwise to make an attempt
to lay down any particular rules which 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 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.
XX XX XX
29. In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 it
was observed by Goswami, J., who spoke for the Court, that "there
cannot be an inexorable formula in the matter of granting bail. The
facts and circumstances of each case will govern the exercise of
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judicial discretion in granting or cancelling bail".
30. In American Jurisprudence (2d, Vol. 8, page 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 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."
9. Also, in "Gudikanti Narasimhulu and others Versus Public
Prosecutor, High Court of Andhra Pradesh", 1978 AIR (Supreme Court) 429,
the Hon'ble Supreme Court, speaking through Krishna Iyer, J., has enunciated the
principles of bail thus :
"9. Thus the legal principle and practice validate the court
considering the likelihood of the applicant interfering with witnesses
for the prosecution or otherwise polluting the process of justice. It is
not only traditional but rational, in this context, to enquire into the
antecedents of a man who is applying for bail to find whether he has
a bad record-particularly a record which suggests that he is likely
to commit serious offences while on bail. In regard to habitual, it is
part of criminological history that a thoughtless bail order has
enabled the bailee to exploit the opportunity to inflict further crimes
on the member of society. Bail discretion, on the basis of evidence
about the criminal record of a defendant, is therefore not an
exercise in irrelevance.
10. The significance and sweep of Article 21 make the deprivation of
liberty a matter of grave concern and permissible only when the law
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authorising it is reasonable, even-handed and geared to he goals of
community good and State necessity spelt out in Article 19. Indeed,
the considerations I have set out as criteria are germane to the
constitutional proposition I have deduced. Reasonableness
postulates intelligent care and predicates that deprivation of
freedom by refusal of bail is not for punitive purpose but for the bi-
focal interests of justice - to the individual involved and society
affected.
11. We must weight the contrary factors to answer the test the
reasonableness, subject to the need for securing the presence of the
bail applicant. It makes sense to assume that a man on bail has a
better chance to prepare of present his case than one remanded in
custody. And if public justice is to be promoted. mechanical
detention should be demoted. In the United States, which has a
constitutional perspective close to ours, the function of bail is
limited, 'community roots' of the applicant are stressed and, after
the Vera Foundation's Manhattan Bail Project, monetary suretyship
is losing ground. The considerable public expense in keeping in
custody where no danger of disappearance or disturbance can arise,
is not a negligible consideration. Equally important is the
deplorable condition, verging on the inhuman, of our sub-jails, that
the unrewarding cruelty and expensive custody of avoidable
incarceration makes refusal of bail unreasonable and a policy
favouring release justly sensible.
12. A few other weighty factors deserve reference. All deprivation of
liberty is validated by social defence and individual correction
along an anti-criminal direction. Public justice is central to the
whole scheme of bail law. Fleeing justice must be forbidden but
punitive harshness should be minimised. Restorative devices to
redeem the man, even through community service, meditative drill,
study classes or other resources should be innovated, and playing
foul with public peace by tampering with evidence, intimidating
witnesses or committing offences while on judicially sanctioned 'free
enterprise', should be provided against. No seeker of justice shall
play confidence tricks on the court or community. Thus, conditions
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may be hung around bail orders, not to cripple but to protect. Such
is the holistic jurisdiction and humanistic orientation invoked by the
judicial discretion correlated to the values of our Constitution.
13. Viewed from this perspective, we gain a better insight into the
rules of the game. When a person, charged with a grave offence,
has been acquitted at a stage, has the intermediate acquittal
pertinence to a bail plea when the appeal before this Court pends?
Yes, it has. The panic which might prompt the accused to jump
the gauntlet of justice is less, having enjoyed the confidence of
the court's verdit once. Concurrent holdings of guilt have the
opposite effect. Again, the ground for denial of provisional
release becomes weaker when the fact stares us in the face that a
fair finding if that be so - of innocence has been recorded by one
court. It may not be conclusive, for the judgment of acquittal may
be ex facie wrong, the likelihood of desperate reprisal, if
enlarged, may be a deterrent and his own safety may be more in
prison than in the vengeful village where feuds have provoked the
violent offence. It depends. Antecedents of the man and socio-
geographical circumstances have a bearing only from this angle.
Police exaggerations of prospective misconduct of the accused, if
enlarged, must be soberly sized up lest danger of excesses and
injustice creep subtly into the discretionary curial technique. Bad
record and policy prediction of criminal prospects to invalidate
the bail plea are admissible in principle but shall not stampede the
court into a complacent refusal."
10. 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.
11. The reason for forming the above inference emanates from the factum
that:- (i) Though the petitioner was declared as proclaimed offender, and remained
on a run for about 08 years, however, considering the fact that the co-accused was on
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the same set of allegations, and has earned acquittal, and the petitioner is suffering
from serious ailments, therefore, confining the petitioner behind the bars would not
serve any purpose; (ii) The petitioner has suffered incarceration of 09 months and
23 days, as of today; (iii) The petitioner is not involved in any other case. (iv) Trial
is not likely to conclude anytime soon..
FINAL ORDER
12. Considering the hereinabove made discussion, this Court deems it fit
and 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.
13. However, anything observed here-in-above shall have no effect on
the merits of the trial, and is only meant for deciding the present petition.
14. All pending application(s) stand disposed of accordingly.
(KULDEEP TIWARI)
09.05.2024 JUDGE
amandeep
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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