Punjab-Haryana High Court
Baj Singh vs State Of Punjab on 5 November, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:143655
CRM-M-53567-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
214 CRM-M-53567-2024
DATE OF DECISION: 05.11.2024
BAJ SINGH ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Raj Kumar Sharma, Advocate for the petitioner(s).
Mr. Malkiat Singh, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 483 of Bhartiya
Nagarik Suraksha Sanhita, 2023 for grant of regular bail to the petitioner
in case FIR No. 195 dated 01.09.2023 registered under section 22 of
NDPS Act, 1985 (Section 29 of NDPS Act added later on), Police Station
Dharamkot, District Moga.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'To, Incharge Officer, P.S. Dharamkot, Today, I,
Inspector/ SHO alongwith ASI Jagmohan Singh No. 93/Moga,
Constable Gurjit Singh No. 1258/Moga, PHG GopalSingh No.
23331 were on official vehicle make Scorpio bearing No. PB-29-L-
9604, which was driven by Constable JaskaranSingh No.
1029/Moga and were on patrolling duty in search of suspicious
persons in the area from Udham Singh Chowk to Village Jalalabad
(East). When the vehicle of police party reached from GT Road to
Link Road near T-Point, Jalalabad (East), it was about11:30 AM
one hair cut person was seen coming on foot who got perplexed on
seeing the police vehicle and took COPY OF THE out one black
colour plastic envelope from the right pocket of his lower and
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threw on the side of the road and tried to turn back. On the basis of
suspicion, he was apprehended with the help of the accompanying
officials and on asking he disclosed his name Baj Singh son of
Chamkaur Singh son of Jora Singh, resident of Bhinder Road,
Village Jalalabad (East), District Moga. Public witness was tried
to join but nobody agreed for the same. Thereafter, I, Inspector/
SHO disclosed my identity to Baj Singh above that my name is
Inspector Gurvinder Singh and I am posted as SHO,
P.S.Dharamkot. I am wearing uniform which is bearing my name
plate. I have disclosed you my rank and posting. Thereafter,
1/Inspector-SHO, told Baj Singh that the black plastic envelop
thrown by him after taking from the right side of pocket of his
lower is suspected to contain some intoxicant and retaining the
same is an offence, therefore, the black plastic envelope is thrown
by you is to be checked and you have legal right to get yourself
searched from Magistrate or Gazetted Officer, who can be called
on the spot or you can be taken before them. On Which Baj Singh
told me, Inspector/ SHO that he has full confidence in me and you
can search the black plastic envelope thrown by me on the road
side. I, Inspector/SHO prepared a notice under Section 50 of
NDPS Act whwich was signed by Baj Singh in Punjabi. ASI-
Jagmohan Singh No. 93/Moga and Constable Gurjit Singh
No.1258/Moga, signed the same as witnesses, thereafter, I,
Inspector/SHO, picked the black coloured enveloped thrown on the
road and on checking light orange colour intoxicant loose tablets
were recovered which were counted after taking out from the
envelop and it was totaling 50 intoxicating tablets. The recovered
loose intoxicating tablets were put into same plastic envelop and
prepared a parcel by preparing a bundle of cloth. The parcel
contained loose tablets was stamped with seal 'GS" and the sample
seal was prepared separately. After use the stamp was handed over
to Assistant Sub Inspector Jagmohan Singh bearing No. 93/Moga.
Thereafter, the parcel containing loose intoxicating tablets and
bearing seal 'GS' alongwith the sample sealed cloth were taken
into police possession through recovery memo. Recovery memo
was signed by ASI- Jagmohan Singh No. 93/Moga and constable
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Gurjit Singh 1258/Moga as witness. Thereafter, I, Inspector/ SHO
told BajSingh to take out the pockets of lower by his hand wore by
him and when he did so no cash/jewellery or mobile phone was
recovered from his possession. The personal search memo was
separately prepared, which was signed by Baj Singh above in
Punjabi. The personal search memo was signed by ASI-Jagmohan
Singh 93/Moga and constable Gurjit Singh 1258/Moga as witness.
Baj Singh above mentioned could not produce any license or
permit for having possession of loose intoxicating tablets. Baj
Singh by retaining loose intoxicating tablets in his possession has
committed offence punishable under section 22/61/85 of NDPS
Act, therefore, written ruqa is sent through PHG Gopal Singh No.
23331 to police Station for registration of FIR against Baj Singh
son of Chamkaur Singh son of Jora Singh, resident of Village
Jalalabad (East), Moga. FIR number be informed after
registration. Official and PCR be informed. Special reports be
sent. I, CY OF THE Inspector/SHO alongwith accompanying
official is busy in investigation on spot. Sd/-Gurvinder Singh,
Inspector/ SHO, P.S. Dharamkot, Dated
01.09.2023.'
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been falsely implicated in the present case and as per the
FIR, 50 loose intoxicating tablets were alleged to have been recovered
from the petitioner and as per the FSL report the recovered tablets is
having average weight of 121 mg per tablet and the total weight of 50
loose tablets is 605 grams containing salt Etizolam. He submits that the
case of the prosecution is based on the circumstantial evidence and the
prosecution is not able to connect the petitioner with the recovery. He has
further argued that the antecedents of the petitioner are clean and no
fruitful purpose would be served by keeping the petitioner behind the bars
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as conclusion of trial would take long time as out of total 14 Prosecution
Witnesses, one PW has been examined so far.
On behalf of the State
On the other hand, learned State Counsel appearing on
advance notice, accepts notice on behalf of respondent-State and has filed
the custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for 1 year, 2 months and
1 day.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that 50 loose
tablets of 605 grams containing salt Etizolam has been recovered from the
right side of pocket of his lower worn by him and it falls under the
commercial quantity but he is not in a position to controvert the
submissions made by counsel for the petitioner. He further submits that
petitioner is a habitual offender as he is involved in one more FIR. He
informs the Court that in the present FIR challan stands presented on
03.11.2023 and charges stands framed on 06.12.2023.
4. Analysis
Be that as it may, from the above discussion, it can be culled
out that the petitioner has already suffered sufficient incarceration i.e. 1
year, 2 months and 1 day, considering that the quantity of recovered
contraband is marginal above than the commercial quantity and as per
the principle of the criminal jurisprudence, no one should be considered
guilty, till the guilt is proved beyond reasonable doubt, whereas in the
instant case, challan stands presented on 03.11.2023 and charges stands
framed on 06.12.2023, out of 14 prosecution witnesses, only one PW has
been examined so far which is sufficient for this Court to infer that the
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conclusion of trial is likely to take considerable time and therefore,
detaining the petitioner behind the bars for an indefinite period would
solve no purpose.
Reliance can be placed upon the judgment of the Apex Court
rendered in "Dataram versus State of Uttar Pradesh and another",
2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of
bail is a general rule and putting persons in jail or in prison or in
correction home is an exception. Relevant paras of the said judgment is
reproduced as under:-
"2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important facet
of our criminal jurisprudence is that the grant of bail is the general
rule and putting a person in jail or in a prison or in a correction
home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been
lost sight of with the result that more and more persons are being
incarcerated and for longer periods. This does not do any good to
our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the
discretion of the judge considering a case but even so, the exercise
of judicial discretion has been circumscribed by a large number of
decisions rendered by this Court and by every High Court in the
country. Yet, occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do on the
facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best opportunity
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to tamper with the evidence or influence witnesses. If the
investigating officer does not find it necessary to arrest an accused
person during investigations, a strong case should be made out for
placing that person in judicial custody after a charge sheet is filed.
Similarly, it is important to ascertain whether the accused was
participating in the investigations to the satisfaction of the
investigating officer and was not absconding or not appearing
when required by the investigating officer. Surely, if an accused is
not hiding from the investigating officer or is hiding due to some
genuine and expressed fear of being victimised, it would be a
factor that a judge would need to consider in an appropriate case.
It is also necessary for the judge to consider whether the accused
is a first-time offender or has been accused of other offences and if
so, the nature of such offences and his or her general conduct. The
poverty or the deemed indigent status of an accused is also an
extremely important factor and even Parliament has taken notice
of it by incorporating an Explanation to section 436 of the Code of
Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting section
436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by
a judge, while dealing with an application for remanding a suspect
or an accused person to police custody or judicial custody. There
are several reasons for this including maintaining the dignity of an
accused person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the fact that
there is enormous overcrowding in prisons, leading to social and
other problems as noticed by this Court in In Re-Inhuman
Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5)
Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered in
Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609
going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way back
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in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is
not to be withheld as a punishment. Reference was also made to
Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was
observed that grant of bail is the rule and refusal is the exception.
The provision for bail is therefore age-old and the liberal
interpretation to the provision for bail is almost a century old,
going back to colonial days.
7. However, we should not be understood to mean that bail should
be granted in every case. The grant or refusal of bail is entirely
within the discretion of the judge hearing the matter and though
that discretion is unfettered, it must be exercised judiciously and in
a humane manner and compassionately. Also, conditions for the
grant of bail ought not to be so strict as to be incapable of
compliance, thereby making the grant of bail illusory."
Therefore, to elucidate further, this Court is conscious of the
fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in "Hussainara Khatoon
and ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction period
of the under-trials should be as short as possible keeping in view the
nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence, reasonable apprehension of
tampering with the witness or apprehension of threat to the complainant.
As far as the pendency of other cases and involvement of
the petitioner in other cases is concerned, reliance can be placed upon
the order of this Court rendered in CRM-M-25914-2022 titled as
"Baljinder Singh alias Rock vs. State of Punjab" decided on
02.03.2023, wherein, while referring Article 21 of the Constitution of
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India, this Court has held that no doubt, at the time of granting bail, the
criminal antecedents of the petitioner are to be looked into but at the
same time it is equally true that the appreciation of evidence during the
course of trial has to be looked into with reference to the evidence in
that case alone and not with respect to the evidence in the other
pending cases. In such eventuality, strict adherence to the rule of denial
of bail on account of pendency of other cases/convictions in all
probability would land the petitioner in a situation of denial of the
concession of bail.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail on his furnishing bail
and surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
05.11.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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