Punjab-Haryana High Court
Parth Sharma vs State Of Punjab on 21 November, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:153381
CRM-M-42817-2024 -1-
213
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-42817-2024
DECIDED ON: 21.11.2024
PARTH SHARMA ....PETITIONER
VERSUS
STATE OF PUNJAB .....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Monty Goyal, Advocate for the petitioner.
Mr. Jaspal Singh Guru, AAG, Punjab.
SANDEEP MOUDGIL, J (ORAL)
1. Relief sought
The jurisdiction of this Court has been invoked under Section
483 of BNSS, 2023 for grant of regular bail to the petitioner in FIR No.158,
dated 23.09.2023, under Section 22 of NDPS Act, registered at Police
Station City Khanna, District Ludhiana.
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
"Station House Officer, Police Station City Khanna, Jai
Hind, Today myself ASI along with ASI Harinder Singh
345/Khanna, ASI Parminder Kumar 613/Khanna, HC
Amarinder Singh 491/Khanna in private car by carrying
laptop-printer were patrolling and checking over
suspicious persons were present at Priston Mall, within
the boundary of Near Guru Nanak Computer Kanda,
Main GT Road Khanna. Around 09:30AM, we spotted a
swift car colour white, roof black from the Mandi
Gobindgarh Road side on the slip road. On the basis of
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suspicion signalled the above car to stop. On seeing the
police party driver of the car slowed the car, then very
cleverly tried to ran away, then myself ASI with the help
of police party blocked the barricade and stopped the car.
Its registration No. is DL5CK7066 marka swift colour
white roof black. Above numbered car parked on side
lane. Two haircut persons were seated in it. Then myself
ASI on the basis of suspicion with the help of co-officials
got alighted both the haircut persons from car and asked
their name and address, then car driver told his name
Parth sharma s/o Ashwani Kumar r/o village Charwal,
near High School, Police Station Gaajbag, District
Kathua, Jammu Kashmir and second haircut person who
seated on conductor seat told his name Mannat Sharma
s/o Vijay Kumar Sharma r/o House No.43, Ward No.7,
Near Wine Shop Lakhanpur, Police Station Lakhanpur,
District Kathua, Jammu Kashmir. Myself ASI introduced
myself to them that 'I ASI Shamsher Singh NO.
463/Khanna Police Station City Khanna is deputed as
Investigating Officer. Me and my co-officials are in
uniform, my name plate is attached. I have a suspicion
that you might have some intoxicant substance. For this,
you and your car has to be searched, but you have a right
to get yourself and your above numbered car can be
search through a gazetted officer or in the presence of
Magistrate. They can be called on the spot, or you may
be escorted to them." On this, both the accused persons
in one voice said we have full faith on you, you can check
ourselves and our car bearing No. DL-5CK- 7066 marka
Swift. Then myself ASI asked above accused persons that
what 1s yOUr qualification'; then accused Parth Sharma
told that 'I am 12th standard pass' and accused Mannat
Sharma told 'I studied upto B-Com'. Separate memo of
consent were recorded. Both the accused persons
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appended their signatures on their respective memos
which were testified by the witnesses. Then myself ASI
searched both the young person Parth Sharma and
Mannat Sharma, but nothing objectionable found from
them. Then above car No. DL5CK7066 marka Swift was
searched as per procedure, then beneath the car seats
one weighty transparent envelope was found. Therefore,
myself ASI tried to incorporate public witness, but
everybody revealed their compulsions and denied to join.
Then myself ASI picked up the transparent envelope
beneath car seat, on opening it; 10 vials were found. Out
of which 8 vials marked as COREXS Cough Syrup,
Triprolidine, Hydrochloride & Codeine phosphate,
weight 100 ML mfg. No. MNB/06/421, Batch No.
TBHQ0842, MEG Date 08/2023 and Expiry Date-
7/2025 were recovered and 2 vials marked as ASCORIL-
C Cough Syrup, Codeine Phosphate and
Chlorpheniramine Maleate weight MI 120 Mfg. No.
MNB/05/182, Batch No. 05220591, mg date MAR 2022
and expiry date FEB/2024. Therefore, the 10 vials of
cough AR R syrup were put into one bag and its parcel
was prepared. Parcel was seal stamped by myself ASI
with initials SS. Sample seal stamp SS was prepared
separately. After the usage of stamp, to ASI Harwinder
Singh it was handed over 345/Khanna. Case properties;
10 vials of cough syrup stamped with SS, sample stamp
initials SS and DL-5CK7066 marka Swift colour white
roof black were taken into police custody. Accused Parth
Sharma and Mannat Sharma appended their signatures
on memo, testified by the witnesses. Above accused
persons by keeping 10 cough syrup committed offences
punishable under Section 22-61-85 NDPS Act. On which
ruga for the registration of case FIR against accused
Parth Sharma and Mannat Sharma has been written and
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sent by hand ASI Parminder Kumar 613/Khanna to
Police Station. After the registration of case FIR, its
number be obtained from the case file. Special reports be
issued and sent to the service of Senior Officers. Myself
ASI along with co-officials are indulged in investigation.
Sd/- Shamsher Singh ASI, Police Station City Khanna
dated 23.09.2023."
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that as per the
prosecution story 8 bottles Corexs Cough Syrup containing salt Triprolidine
Hydrochloride & Codeine Phosphate of 100 ml and 2 bottles of Ascoril-C
Cough Syrup containing salt Codeine Phosphate and Chlorpheniramine
Maleate of 120 ml has been recovered from the possession of the petitioner.
He further contends that the petitioner is neither the owner of the vehicle in
question i.e. DL5CK-7066 marka Swift nor was driving the said vehicle. It
has been contended on behalf of the petitioner that he is not a habitual
offender as he is not involved in any other case.
On behalf of the State
On the other hand, learned State counsel has produced the
custody certificate of the petitioner today in Court, which is taken on record.
He seeks dismissal of the instant petition on the ground that the quantity of
recovered contraband falls under the commercial quantity.
4. Analysis
Be that as it may, considering the custody period i.e. 07 months
and 07 days for which the petitioner has suffered incarceration; the petitioner
is neither the owner of the vehicle in question i.e. DL5CK-7066 marka Swift
nor was driving the said vehicle; the petitioner is not a habitual offender as
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he is not involved in any other case, as is evident from custody certificate in
addition to the fact that investigation is complete, challan stands presented to
Court on 16.03.2024, charges have been framed on 30.07.2024 and out of
total 14 prosecution witnesses, 02 witnesses have been examined and 02
witnesses have been given up so far, which is suffice for this Court to infer
that the conclusion of trial will take long time for which the petitioner cannot
be detained behind the bars for an indefinite period.
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
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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 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.
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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 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
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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 his 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.
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)
21.11.2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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