Punjab-Haryana High Court
Gurbax Singh vs State Of Punjab on 7 May, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:063460
CRM-M-21483-2024 -1-
204
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
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CRM-M-21483-2024
Date of Decision: 07.05.2024
Gurbax Singh .....Petitioner
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Arshdeep, 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.85 dated 03.07.2022, under Section 22 of the NDPS Act, 1985
(Section 29 of the NDPS Act added later on), registered at Police Station
Lakho Ke Behram, District Ferozepur.
2. It has been submitted by learned counsel for the petitioner that
the petitioner is in custody for 1 years and 10 months and as per the allegation,
there had been a recovery of 1720 tablets of Tramadol from the motorcycle of
the petitioner. He further submitted that in the present case, the charges were
framed by the learned trial Court on 11.04.2023 and thereafter on 26.10.2023
because some of the other co-accused were apprehended later on and till date
only 3 out of 11 prosecution witnesses have been examined. He also submitted
that the petitioner has clean antecedents and is not involved in any other case.
He submitted that in view of the aforesaid long incarceration and the stage of
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trial where the prosecution witnesses, who are none other but the police
officials, are not coming forth to depose before the Court, the bar contained
under Section 37 of the NDPS Act will not apply to the petitioner in the facts
and circumstances of the present case and also in the light of the judgments of
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.
3. On the other hand, Mr. A.S. Pannu, learned AAG, Punjab on
instructions from ASI Roshal Lal, who is present in the Court, submitted that it
is correct that the petitioner has faced incarceration for 1 year and 10 months
and it is also correct that the charges were framed in the present case on
11.04.2023 and thereafter on 26.10.2023 and till date 3 out of 11 cited
prosecution witnesses have been examined out of which, one is an
investigating officer and other two are formal witnesses. He further submitted
that as per his instructions the petitioner is not involved in any other case and
has clean antecedents. He has however opposed the grant of regular bail to the
petitioner on the ground that the recovered quantity from the petitioner was
1720 tablets of Tramadol and the total weight of the tablets is more than 700
grams 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.
4. I have heard the learned counsels for the parties.
5. It is a case where the petitioner has faced incarceration for 1 year
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and 10 months and has clean antecedents and is not involved in any other case.
Although, recovered quantity from the petitioner falls in the category of
commercial quantity but the charges in the present case were framed on
11.04.2023 and again on 26.10.2023 and till date only 3 prosecution witnesses
have been examined. The delay in the trial has not been attributable to the
petitioner because as per the learned State Counsel, further charges were
framed because some of the other co-accused were apprehended later on.
6. Since, the petitioner has already faced incarceration for 1 year and
10 months and he stated to be having clean antecedents, the judgment of
Hon'ble Supreme Court in Satender Kumar Antil's case (supra) would be
applicable in the present case. The relevant para 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
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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."
7. 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
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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."
8. 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."
9. 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
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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."
10. After hearing the learned counsels for the parties and considering
the fact that the petitioner is having clean antecedents and is in custody for 1
year and 10 months and after the framing of the charges only three witnesses
have been examined, this Court is of the 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.
11. 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.
12. 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.
07.05.2024 (JASGURPREET SINGH PURI)
Bhumika JUDGE
1. Whether speaking/reasoned: Yes/No
2. Whether reportable: Yes/No
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