Punjab-Haryana High Court
Usha Devi Alias Asha Devi vs State Of Punjab on 20 November, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:151727
CRM-M-56828-2024 -1-
221
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-56828-2024
DECIDED ON: 20.11.2024
USHA DEVI ALIAS ASHA DEVI
.....PETITIONER
VERSUS
STATE OF PUNJAB
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Satnam Thakur, Advocate and
Mr. Abhinav Mahant and Mr. Vikas Rana, Advocates
for the petitioner.
Mr. Jasjit Singh Rattu, DAG Punjab.
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court has been invoked under Section 439
Cr.P.C., seeking regular bail to the petitioner in case FIR No.182 dated
17.09.2022, under Sections 21 of NDPS Act, 1985 registered at Police Station
Mahilpur, District Hoshiarpur.
2. Facts
Facts as narrated in the FIR reads as under:-
"To the station house officer police station Mahilpur , today I SI / SHO
along with ASI Ramal number 619 Hoshiarpur, Ankush Kumar sepoy
number 1725 Hoshiarpur, lady / head constable Parminder Kaur number
928 Hoshiarpur, PHG Paramjeet Kaur number, PHG Jaswinder Singh
26920 were on government vehicle whose driver name is ASI Kulwinder
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Singh number 681/ Hoshiarpur were on regular checking in regard to
doubtful persons and were at Harbans gate mahilpur. And one secret
informer give us information that Jasbir Kaur alias faujan wife of late
Kishan Singh resident of langeri road mahilpur and her family who are
involved in selling of huge quantity of heroine which is illegal business
and they have many cases registered against them. Jasveer Kaur faujan is
presently confined in jail and her family in which her daughter in law and
her daughters and one son and two servants and other family members
are doing business at very high level at her instance and at their own
home and selling heroine. Today her family members have hidden the
money which is earned from selling drugs and one plastic packet of
heroine and both are kept at the house of jasveer Kaur - alias faujan at
langheri road mahilpur at the verrandah in the soil and heroine is hidden
at the outside wall of the outside kitchen. Today Usha Devi wife of late
tilak raj resident of House of jasveer Kaur langeri road mahilpur, Usha
Devi alias Asha Devi wife of Paramjit resident of house jasveer Kaur
faujan langeri road mahilpur, Renu daughter of Late Kishan Singh wife of
not known resident of police station bhogpur at present resident of house
of jasveer Kaur faujan road mahilpur, Maninder wife of Raja daughter of
late Kishan Singh resident of wadiyan district SBS Nagar at present
resident of house of jasveer Kaur faujan, Langeri road mahilpur, Veenu
wife of not known daughter of late Kishan Singh resident of Chandu chak
police station bhogpur at present resident of jasveer Kaur faujan Langeri
road Mahilpur Rimpy wife of honey daughter of late Kishan Singh
resident of Chandigarh at present resident of jasveer faujan, Langer road
mahilpur, Ravinder Kaur wife of rummy daughter of late Kishan Singh
residence of house of jasveer Kaur, bhajan Singh alias Rummy son of late
Kishan Singh resident of house of jasveer Kaur Langeri road mahilpur
are present at the house and are selling heroine by putting them in packets
and if ray disc connected at present moment then heavy quantity of
heroine can be recovered and also the money which is earned from the
said purpose and along with the persons can be arrested. The present
information is valid and can be believed and prima facie offence under
section 21/61/85 NDPS Act is committed and for this has been written and
will send to the police station by hand of head constable Ankush Kumar
number 17254 to the police station and the case we registered and the
case number may kindly be informed and special reports make kindly be
prepared. The control room make kindly be informed and today I SI / SHO
along with the colleagues on government vehicle whose driver is ASI
Kulwinder Singh number 681 Hoshiarpur and along with private vehicles
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are going to langeri road mahllpur signed Jaswant Singh SI station house
officer police station mahilpur dated 17th September 2022 in the
jurisdiction of urban gate mahllpur at 5:10 p.m."
3. Contentions:
On behalf of the petitioner
Learned counsel for the petitioner submits that the petitioner was
working as a servant in the house from where 1.5 kg heroin was recovered
alongwith an amount of Rs.5 lacs. He has drawn attention of this Court to an order
dated 02.04.2024 (Annexure P-5) passed by a co-ordinate Bench of this Court in
CRM-M-25040-2023, vide which co-accused namely Manjit Kaur has already
been granted the concession of regular bail and claims parity.
On behalf of the State
Learned State counsel has filed the custody certificate of the
petitioner, which is taken on record. He prays for dismissal of the present petition
stating that the contraband recovered in the present case is commercial in nature,
and therefore, the rigorous of Section 37 of NDPS Act would be attracted.
4. Analysis
Considering the custody period undergone by the petitioner i.e., 2
years, 2 months and is not involved in any other case, as is evident from the
perusal of the custody certificate and co-accused has already been granted the
concession of regular bail, investigation is complete, challan stands presented on
14.03.2023, wherein conclusion of trial shall take considerable time as out of 12
prosecution witnesses, only 2 has been examined after framing of charges on
10.05.2023 so far, no useful purpose would be served by keeping the petitioner
behind bars for uncertain period, wherein "bail is a rule and jail is an exception"
and it would also violate the principle of right to speedy trial and expeditious
disposal under Article 21 of Constitution of India, as has been time and again
discussed by this Court, while relying upon the judgment of the Apex Court
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passed in Dataram Singh vs. State of Uttar Pradesh & Anr. 2018(2) R.C.R.
(Criminal) 131. 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 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
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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 in Nagendra v. King-Emperor, AIR 1924
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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 basic
and 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.
5. DECISION:
In view of the discussions made hereinabove, the petitioner is hereby
directed to be released on regular bail on furnishing bail and surety bonds to the
satisfaction of the trial Court/Duty Magistrate, concerned.
In the afore-said terms, the present petition is hereby allowed.
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However, it is made clear that anything stated hereinabove shall not
be construed as an expression of opinion on the merits of the case.
(SANDEEP MOUDGIL)
20.11.2024 JUDGE
Meenu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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