Punjab-Haryana High Court
Bharat Singh Rajput vs State Of Haryana on 8 May, 2024
Neutral Citation No:=2024:PHHC:063932
CRM-M-43496-2023 and connected case 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
107-1&3 (I) CRM-M-43496-2023
Date of Decision : May 08, 2024
BHARAT SINGH RAJPUT -PETITIONER
V/S
STATE OF HARYANA -RESPONDENT
(II) CRM-M-12757-2024
SUKHVEER SINGH -PETITIONER
V/S
STATE OF HARYANA -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Dr. Anmol Rattan Sidhu, Sr. Advocate with
Mr. Vipun, Advocate
for the petitioner (in CRM-M-43496-2023).
Mr. Aditya Sanghi, Advocate
for the petitioner (in CRM-M-12757-2024).
Mr. Bhupender Singh, D.A.G., Haryana.
***
KULDEEP TIWARI, J. (ORAL)
1. Since both these petitions derive their origin from a common
FIR, besides when the relief claimed therein is also alike, therefore, both
these petitions are amenable for being decided through a common verdict.
2. The petitioners, in both these petitions, crave for them being
enlarged on regular bail, in case FIR No.146 dated 20.07.2023, under
Sections 15(c)/29 of the N.D.P.S. Act, 1985, registered at P.S. Baragudha,
District Sirsa.
ALLEGATIONS AGAINST THE PETITIONERS
3. Succinctly stated, on 20.07.2023, co-accused Vikramjit, Anand
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Kumar and Janti Singh @ Janta were arrested by police, as they were found
in conscious possession of 90 kilograms Doda Post, without any valid
permit or licence. Subsequently, they suffered disclosure statement(s) that
the recovered contraband was given to them by the petitioners.
SUBMISSIONS OF THE LEARNED COUNSELS FOR THE
PETITIONERS
4. The learned counsels for the petitioners submit that the
petitioners were not apprehended at the spot, rather the only piece of
evidence, which constitutes the bedrock for the investigating agency to
nominate the petitioners as accused, is the disclosure statement(s) of co-
accused, from whom the alleged recovery of 90 kilograms Doda Post was
effected, and as such, said disclosure statement(s) cannot be taken into
consideration. Except disclosure statement(s), the investigating agency is
not seized of any cogent inculpatory evidence against the petitioners.
5. Concluding their arguments, the learned counsels for the
petitioners submit that, since the petitioners, who are first offenders and
have clean past antecedents, have been languishing behind the bars for the
past approx. 9½ months, therefore, they may be released on bail, as no
fruitful purpose would be served by subjecting them to prolonged
incarceration, especially when charges are yet to be framed.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
6. Per contra, the learned State counsel has opposed the grant of
regular bail to the petitioners, on the ground that, since the contraband,
although recovered from co-accused, falls within the category of
"commercial quantity", therefore, in view of the statutory bar engrafted in
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Section 37 of the N.D.P.S. Act, the petitioners do not deserve the
concession of bail.
7. The learned State counsel has also filed the separate custody
certificates of the petitioners, which are taken on record. Moreover, on
instructions imparted to him by the official concerned, he has informed this
Court that, although the Final Report has been presented, however, charges
are yet to be framed.
ANALYSIS
8. Before embarking upon the process of evaluating the argu-
ments 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.
9. "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 en-
shrined 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.
10. The right to a speedy trial is one of the rights of a detained per-
son. However, while deciding application for regular bail, the Courts shall
also take into consideration the fundamental precept of criminal jurispru-
dence, which is "the presumption of innocence", besides the gravity of of-
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fence(s) involved.
11. 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 Cal-
cutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476 (479,
480) that the object of bail is to secure the attendance of the ac-
cused 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 de-
serve a special mention. In K.N. Joglekar v. Emperor, AIR 1931 Al-
lahabad 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 pre-
ceding 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 con-
ferred by Section 498 and that the only principle which was estab-
lished 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 unfet-
tered. According to the High Court, the variety of cases that may
arise from time to time cannot be safely classified and it is danger-
ous to make an attempt to classify the cases and to say that in partic-
ular classes a bail may be granted but not in other classes. It was
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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 de-
fend 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 ju-
dicial 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 cumula-
tive effect of which must enter into the judicial verdict. Any one sin-
gle circumstance cannot be treated as of universal validity or as
necessarily justifying the grant or refusal of bail."
12. 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 consid-
ering the likelihood of the applicant interfering with witnesses for
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the prosecution or otherwise polluting the process of justice. It is not
only traditional but rational, in this context, to enquire into the an-
tecedents 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 en-
abled 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 con-
stitutional proposition I have deduced. Reasonableness postulates
intelligent care and predicates that deprivation of freedom by re-
fusal 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 rea-
sonableness, 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 per-
spective 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 con-
sideration. Equally important is the deplorable condition, verging on
the inhuman, of our sub-jails, that the unrewarding cruelty and ex-
pensive custody of avoidable incarceration makes refusal of bail un-
reasonable 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
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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 com-
mitting offences while on judicially sanctioned 'free enterprise',
should be provided against. No seeker of justice shall play confi-
dence 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 judi-
cial 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."
13. The Hon'ble Supreme Court in "Rabi Prakash Versus The
State of Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023,
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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 con-
tained 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."
14. Considering the hereinabove made submissions, especially the
fact that: (i) in view of law laid down by the Hon'ble Supreme Court,
sufficient period of incarceration dilutes the stringent conditions of Section
37 of the N.D.P.S. Act; (ii) the main thrust of the reply filed by the
respondent-State is upon disclosure statement(s) of co-accused; (iii) the
petitioners have, as per custody certificates, suffered incarceration of
approx. 9½ months and they have clean past antecedents; (iv) the trial is not
likely to conclude anytime soon, as charges are yet to be framed; this Court
deems it appropriate to grant the concession of regular bail to the
petitioners. Therefore, without commenting upon the merits and
circumstances of the present case, the present petitions are allowed. The
petitioners are ordered to be released on bail on furnishing of bail bond and
surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial
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Court/Duty Magistrate.
15. However, anything observed here-in-above shall have no effect
on the merits of the case and is meant for deciding the present petitions only.
16. A photocopy of this order be placed on file of connected case.
(KULDEEP TIWARI)
May 08, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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