Punjab-Haryana High Court
Vipandeep Singh vs State Of Punjab on 13 May, 2024
Neutral Citation No:=2024:PHHC:066653
CRM-M-8354-2024 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRM-M-8354-2024 (O&M)
Date of decision : May 13, 2024
Vipandeep Singh ....Petitioner
VERSUS
State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Arshdeep Singh Brar, Advocate, for the petitioner
Mr. Akshay Kumar, AAG, Punjab
KULDEEP TIWARI,J. (ORAL)
1. Through the instant petition filed under Section 439 Cr.P.C.
the petitioner prays for grant of regular bail in case FIR No. 313 dated
30,.11.2022, under Section 21 of NDPS Act, registered at Police Station
Division No. 5, District Police Commissionerate Ludhiana.
ALLEGATIONS AGAINST THE PETITIONER
2. The instant FIR has been registered on a complaint made by
ASI Amarjit Kumar. The relevant extract of the complaint reads as under:-
"On 30.11.2022, ASI Amarjit Kumar, was present
along with other police officials at barricading held at
Midha Chowk, Near Bus Stand, Ludhiana, then at
around 7.30 PM, a secret informer came and informed
that the petitioner is in the business of selling of heroin
and is coming to Ludhiana city by bus to supply heroin
to Kochhar market side and if there is strict checking of
the suspicious man, the petitioner can be apprehended
1 of 9
Neutral Citation No:=2024:PHHC:066653
with a large amount of heroin. Believing the
information, to be true and reliable, a ruqa was sent for
registration of the case. Thereafter, the petitioner was
rounded up and on his search, 280 grams of heroin was
recovered from his possession."
3. What transpired from the perusal of the FIR (supra) is that on
the basis of secret information, the present petitioner was rounded up by
the police, and thereupon, on his search, 280 grams of heroin was
recovered, which led to registration of the instant FIR.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER
4. In asking for the relief for grant of regular bail, learned counsel for
the petitioner, inter alia, submits that since the recovery is effected from the
pocket of the accused, therefore, compliance of Section 50 of the NDPS Act, is
mandatory, whereas, the consent memo served upon the petitioner is defective
and clearly in violation of the principles laid down by the Hon'ble Supreme Court
and this Court. He further submits that the petitioner has suffered incarceration of
approximately one and a half year, as on today, and out of 14 witnesses cited by
the prosecution in the final report, only 6 have been examined.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
5. On the other hand, learned State counsel has opposed the grant
of regular bail on the ground that the recovery which is effected from the
present petitioner falls within the ambit of "commercial quantity". He
further submits that as per the Schedule attached with the NDPS Act, any
quantity over and above 250 grams of heroin would fall within the ambit of
"commercial quantity", therefore, the rigor of Section 37 of the NDPS
2 of 9
Neutral Citation No:=2024:PHHC:066653
Act is duly applicable on the present petitioner, and until and unless, the
condition as envisaged under Section 37 of the NDPS Act, is fulfilled, the
petitioner cannot be enlarged on bail.
ANALYSIS
6. Before embarking upon the process of evaluating the
arguments addressed by the learned counsels for the parties and penning
down any opinion upon the instant petition, it is deemed imperative to
capture an overview of some significant legal propositions.
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 "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2
3 of 9
Neutral Citation No:=2024:PHHC:066653
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 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
4 of 9
Neutral Citation No:=2024:PHHC:066653
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 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
5 of 9
Neutral Citation No:=2024:PHHC:066653
universal validity or as necessarily justifying the grant or
refusal of bail."
10. 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 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
6 of 9
Neutral Citation No:=2024:PHHC:066653
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 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."
11. The Hon'ble Supreme Court in "Rabi Prakash Versus The
7 of 9
Neutral Citation No:=2024:PHHC:066653
State of Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023,
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."
REASONS
12. On the touchstone of the above discussion this Court finds that
the the present petitioner deserves to be released on regular bail for the
reason that; (i) the recovered quantity of contraband is marginally above
the commercial quantity; (ii) present petitioner is not a previous convict
and is not involved in any other criminal case; (iii) the petitioner has
suffered incarceration of about 1 year 5 months and 11 days as on today,
and the trial is yet to reach the half way, as out of total 14 witnesses cited
by the prosecution in the final report, only 6 have been examined till date.
FINAL ORDER
13. Considering the fact that the petitioner has suffered sufficient
incarceration of 01 year, 5 months and 11 days, as on today, therefore, the
rigor of Section 37 of the NDPS Act, is diluted in view of Rabi Parkash's
case (supra), coupled with the fact that the trial is yet to reach the half way
8 of 9
Neutral Citation No:=2024:PHHC:066653
as out of total 14 witnesses cited by the prosecution in the final report, only
6 have been examined till date, and further the petitioner is not involved in
any other criminal case, 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.
14. However, it is clarified that if in future, the petitioner is found
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 )
May 13, 2024 JUDGE
'tiwana'
Whether speaking/reasoned ? Yes/No
Whether Reportable ? Yes/No
9 of 9
