Punjab-Haryana High Court
Des Raj Alias Raj vs State Of Punjab on 5 November, 2024
Neutral Citation No:=2024:PHHC:143820
CRM-M-61516-2023 &
CRM-M-50343-2024
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
208 CRM-M-61516-2023
Date of Decision : 05.11.2024
DES RAJ ALIAS RAJ
.....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
211 CRM-M-50343-2024
HARBHAJAN SINGH @ BHAJANA
.....Petitioner
VERSUS
STATE OF PUNJAB .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Jashandeep Singh Sandhu, Advocate for
Mr. J.P.S.Brar, Advocate,
for the petitioner in CRM-M-61516-2023
Ms. Arshpreet Kaur, Advocate, Advocate for
Mr. Vikramjeet Singh, Advocate,
for the petitioner in CRM-M-50343-2024.
Mr. Sahil R. Bakshi, AAG, Punjab.
KULDEEP TIWARI, J.(Oral)
1. Since both the petitions are arising out of a common FIR,
therefore, being amenable for common decision, same are taken up
together.
2. Through the instant first petitions, the petitioners craves for
indulgence of this Court for them being enlarged on regular bail, in case
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FIR No.217, dated 15.09.2022, under Sections 22(c)/27 of the Narcotic
Drugs and Psychotropic Substance Act, 1985, registered at Police Station
Special Task Force, District STF Wing, Bathinda (Annexure P-1).
ALLEGATIONS AGAINST THE PETITIONER
2. The allegations as alleged by the prosecution are that on
15.09.2022, between 6:45 p.m. to 8:55 p.m., in the area of main Mour-
Talwandi Road, near bridge of canal mour, both the present petitioners
were apprehended by the police party of STF Bathinda Range, Bathinda
and from their possession 1080 tablets of Alprasafe 0.5, strips bearing
batch No. PCCAA1014 and 420 tablets of Alprasafe 0.5, strips bearing
back no.PCCAA948, were recovered. Both the petitioners were arrested
on dated 15.09.2022. Thereupon, the investigation was carried out. After
completion of investigation a final report was filed by the investigating
agency on dated 04.01.2023. Thereupon, the learned trial court concerned
framed the charges on dated 20.01.2023.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONERS
3. Learned counsel for the petitioners, in his asking for the
hereinabove extracted relief, submits that both the petitioners have
suffered incarceration of more than 2 years, as on today, and till date the
prosecution is unable to conclude the trial.
4. They further submit that the long incarceration of the
petitioners would dilute the rigors of Section 37 of the NDPS Act.
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5. They further placed reliance upon a judgment of the Supreme
Court in in "Rabi Prakash Versus The State of Odisha", Special Leave
to Appeal (Criminal) No.4169 of 2023.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
6. Per contra, the learned State counsel vociferously opposed
the grant of regular bail to the present petitioners on the ground that the
recovery in the instant matter is of 192.50 grams of 'Alprazolam', which
falls within the ambit of commercial quantity as per the schedule attached
to the NDPS Act, wherein more than 100 grams is stated to be of
commercial quantity.
7. He, on instructions imparted to him by the police official
concerned, submits that out of the total 15 prosecution witnesses, 6
witnesses have been examined and 7 have been given up and now only 2
witnesses remaining to be examined.
8. He has also filed custody certificates qua the petitioners,
today in court, which is taken on record. It reveals that the petitioners
have suffered incarceration of 2 years 1 month 18 days, as on today, and
they are not involved in any other criminal case.
ANALYSIS
9. 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.
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10. "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.
11. 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.
12. 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 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
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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 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 universal
validity or as necessarily justifying the grant or refusal of bail."
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13. 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 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
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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."
14. The Hon'ble Supreme Court in "Rabi Prakash Versus The
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
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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
15. On the touchstone of the above discussion this Court finds
that the the present petitioners deserves to be released on regular bail for
the reason that; (i) present petitioners are not a previous convict and are
not involved in any other criminal case; (ii) the petitioners have suffered
incarceration of about 2 years 01 month and 18 days, as on today; (iii) in
the view of the long incarceration, the rigor of Section 37 of the NDPS
Act, has been diluted as held in Rabi Prakash's case (supra); (iv) the
conclusion of the trial would take long time.
FINAL ORDER
16. Considering the hereinabove made discussion, this Court
deems it fit and 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 their
respective bail bonds and surety bonds to the satisfaction of concerned
Chief Judicial Magistrate/trial Court/Duty Magistrate.
17. However, anything observed here-in-above shall have no
effect on the merits of the trial, and is only meant for deciding the present
petitions.
18. However, it is clarified that if in future, the petitioners are
found indulging in commission of similar offences, as are involved
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herein, the respondent-State shall be at liberty to make an appropriate
application seeking cancellation of regular bail, as granted by this Court.
19. All pending application(s), if any, also stand disposed of
accordingly.
20. A photocopy of this order be placed on the file of the
connected case.
(KULDEEP TIWARI)
November 05, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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