Punjab-Haryana High Court
Kuldeep Singh vs State Of Punjab on 10 May, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:065680
CRM-M-14752-2024 -1-
204
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
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CRM-M-14752-2024
Date of Decision: 10.05.2024
Kuldeep Singh .....Petitioner
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. J.S. Sandhu, 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.13 dated 09.02.2021, under Sections 22(c) & 25 of the NDPS Act,
1985, registered at Police Station Raman, District Bathinda.
2. It has been submitted by learned counsel for the petitioner that
although the present petition is a third successive bail petition but now the
custody of the petitioner is 3 years and 2 months and it is a case where the
petitioner has been falsely implicated. He further submitted that as per the
allegation, the petitioner was found in possession of 10,000 tablets of
Tramadol which although falls in the category of commercial quantity but
considering the facts and circumstances of the present case, the bar contained
under Section 37 of the NDPS Act will not apply in the present case.
3. While substantiating his arguments, learned counsel submitted
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that it is a case where the charges were framed by the learned trial Court on
07.10.2021 and more than 2 years and 7 months have elapsed but no material
witness has been examined till date and only 4 witnesses have been examined
which includes the persons, who had deposited the samples and the official,
who prepared the challan but no person, who had recovered the contraband or
was a part of the police party has been examined till date. He submitted that
the petitioner is not involved in any other case and in fact earlier he was
involved in one more case i.e. FIR No.122, dated 29.12.2020, under Sections
22-C & 25 of the NDPS Act, registered at Police Station SGN Thermal Plant,
District Bathinda, but he has since been acquitted in that case. He further
submitted that delay in the trial is on the part of the prosecution in view of the
fact that as many as 15 times, the learned trial Court was constrained to issue
bailable warrants against the prosecution witnesses, who are none other but the
police officials, who themselves have set the criminal law into motion and
there is no justification as to why they are not coming forth to depose before
the Court and in fact the reason for non-deposition is that the petitioner was
falsely implicated in the present case.
4. Learned counsel for the petitioner has referred to 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.
5. On the other hand, Mr. A.S. Pannu, learned AAG, Punjab on
instructions from SI Sukhpal Singh, who is present in the Court has stated that
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it is correct that the petitioner has faced incarceration for 3 years and 2 months
and it is also correct that the charges were framed in the present case on
07.10.2021 which is more 2 years and 7 months ago and according to his
instructions six prosecution witnesses have been examined and four witnesses
have been given up. So far as the antecedents of the petitioner is concerned, he
submitted that the petitioner was earlier involved in one case under the NDPS
Act in which he has been acquitted. He has however opposed the grant of
regular bail to the petitioner on the ground that the recovered quantity from the
petitioner was 10,000 tablets of Tramadol, 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.
6. I have heard the learned counsels for the parties.
7. It is a case where the petitioner has faced incarceration for 3 years
and 2 months. The petitioner is stated to be not involved in any other case
because earlier he was involved in one more case in which he has already been
acquitted. The charges in the present case were framed on 07.10.2021 which is
more than 2 years and 7 months ago and the trial is not progressing because as
per the learned counsel for the petitioner only four witnesses have been
examined and as per the learned State Counsel, two more witnesses have also
been examined and four have been given up.
8. 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 and failing to appear despite number of times, bailable warrants
were issued against the prosecution witnesses to which he could not offer any
justification.
9. Hon'ble Supreme Court in Satender Kumar Antil's case (supra)
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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."
10. 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
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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 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."
11. Similarly, Hon'ble Supreme Court in Dheeraj Kumar Shukla's
case (supra) has opined as under:
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"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."
12. 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."
13. In view of the aforesaid facts and circumstances of the present
case and considering the long custody of the petitioner and also the stage of
the trial wherein the prosecution witnesses are not coming forth to depose
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before the Court, 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 view of the aforesaid
judgments of Hon'ble Supreme Court of India. Therefore, this Court deems it
fit and proper to grant regular bail to the petitioner.
14. 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.
15. 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.
10.05.2024 (JASGURPREET SINGH PURI)
Bhumika JUDGE
1. Whether speaking/reasoned: Yes/No
2. Whether reportable: Yes/No
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