Punjab-Haryana High Court
Riyaz Ahmad Sher Guri vs State Of Punjab on 29 October, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:142563
CRM-M-52979-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
213 CRM-M-52979-2024
DATE OF DECISION: 29.10.2024
RIYAZ AHMAD SHER GURI ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Gaurav Kalsi, Advocate for the petitioner(s).
Mr. J.S. Rattu, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 483 of BNSS,
2023 for grant of regular bail to the petitioner in case F.I.R no. 61 dated
21.05.2023 under sections 15 & 29 of NDPS Act 1985. Police Station
Sujanpur, District Pathankot.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'SHO, Police Station Sujanpur "Jai Hind", Today I. ASI
along with ASI Sohan lal 1333/PTK CT Gulshan Kumar 405/PTK
PHG Gagan Singh 977 by riding in the Private Vehicle regarding
patrolling and search of anti social elements and special checking
of vehicles, were reached at check post Madhopur via Sujanpur,
where, the checking of the vehicles was getting done, which were
coming from the side of J & K. then one truck bearing registration
number JK 13 E 8395 ASHOKA LEYLAND was seen coming from
the side of Lakhanpur, the same was stopped by giving signal and
asked the name and address of the person sitting of the driver seat,
who told his name as Riyaz Ahmad Sher Guri son of Mohammad
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Ramzan Sher Guri, resident of Midora, Police station Avantipura,
Tehsil Avantipura, District Pulwama, Jammu Kashmir, during the
checking, 5 weighty plastic bags were recovered from the back side
of the driver seat, the same were got opened, upon conducting
checking, poppy husk was recovered from the plastic bags, all the
five bags were marked as A,B,C,D,E and upon weighing all five
bags turn by turn on electronic weighing scale, all came out to be
20/20 Kilograms of poppy husk including the bags, opening of all
the five bags were tied with the rope, I ASI has sealed the same
with my seal bearing number L.R 1/1 and sample seal was
prepared separately, compliance of Form M-29 has been done,
seal was handed over to ASI Sohan Lal after using the same and
all the five bags of plastic containing poppy husk was taken into
police possession vide separate memo as a proof and Truck
bearing registration number JK 13E 8395 was taken in to police
possession vide separate memo. Riyaz Ahmad Sher Guri son of
Mohammad Ramzan Sher Guri, resident of Midora, Police station
Avantipura, Tehsil Avantipura, District Pulwama, Jammu Kashmir
has committed an offence under section 15-61-85 NDPS Act by
keeping 100 kilogram poppy husk in his possession in his truck
bearing registration number JK 13E 8395 ASHOKA LEYLAND,
the ruqa has been reduced into writing and ruqa is being sent to
police station through PHG Gagan Singh 977 for registration of
the FIR, case number be informed after registration of the same,
special reports be issued and be sent to senior officials, control
room be informed through wireless, I, ASI is busy in investigation
on the spot along with the colleagues. Sd/- Lekh raj ASI, Police
station Sujanpur, dated 21.05.2023. today in the area of checkpost
Madhopur At 08:15 PM.
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
allegations, 100 kg. of poppy husk was recovered from the possession of
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the petitioner.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 as conclusion of trial would take long time as
out of total 9 Prosecution Witnesses, only 1 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, 5 months and
4 days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that the alleged
contraband recovered from the possession of the petitioner are
commercial in nature but is not in a position to controvert the submissions
made by counsel for the petitioner. He informs the Court that in the
present FIR challan stands presented on 20.10.2023 and charges stands
framed on 08.11.2023.
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, 5 months and 4 days, antecedents of the petitioner are clean,
meaning thereby he is not a habitual offender, 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 20.10.2023 and charges stands framed on
08.11.2023 out of 9 prosecution witnesses, only 1 PW has been examined
so far which is sufficient for this Court to infer that the conclusion of trial
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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
to tamper with the evidence or influence witnesses. If the
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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
in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is
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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.
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.
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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.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
29.10.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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