Punjab-Haryana High Court
Jaswinder Singh Alias Kaka vs State Of Punjab on 29 October, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:142462
CRM-M-50419-2024
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
205 CRM-M-50419-2024
DATE OF DECISION: 29.10.2024
JASWINDER SINGH ALIAS KAKA ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Sajan, Advocate for
Dr. S.K. Passi, Advocate the petitioner(s).
Mr. J.S. Rattu, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 439 of the Code of
Criminal Procedure for grant of Regular bail pending trial in F.I.R. No. 01
dated 01.01.2024 registered under Sections 22(c) of the NDPS Act, 1985
and later on added Section 29 of the NDPS Act, 1985 at Police Station
Jaito, District Faridkot, Annexure P-1 (Punjab).
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'SHO PS Jaito, Sat Shri Akal, Today myself SI alongwith ASI
Gurbachan Singh No. 763/Fdk, C-2 Harjinder Singh 290/Fdk,
Senior C. Balwinder Singh 864/Fdk, Lady Senior Sipahi C.
Jaspreet Kaur No. 493 alongwith laptop printer on Government
vehicle PB-04N-7774 which was driven by Senior C. Gurpreet
Singh 911/Fdk were on patrolling and checking of suspected
persons were going from Police Station Jaito to Village Sevewala
and reached at Chandran Flyover Drain and done the barricading
and started the checking of the vehicles. Then the time was around
04:00 PM one cherry color car was seen coming from the Village
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Chandbhan and myself SI gave the signal to stop then the car
driver applied the brake and tried to turn back. Myself SI with the
help of co-police personnel nabbed the car driver and asked the
name and address then the car driver told his name as Jaswinder
Singh @ Kaka S/o Gurinderpal Singh S/o Gurdev Singh R/o
Village Dabrikhana Gobindgarh Bajakhana Road, PS Jaito. Then
I, SI introduced myself, rank and posting to the car driver of
Honda City No. DL-4CAH-8525 and told him that myself SI
Charanjeet Singh and is posted as Investigating Officer at C.I.A.
Staff Faridkot and told that I suspect you for having some
intoxicant material with you or in your car. I want to search your
person and your car but you have got the legal right that the
search of your person and your car can be conducted in the
presence of some Magistrate Sahib or Gazetted Officer of Punjab
Police who can be called at the spot without delay or you can be
presented before them. On which car driver Jaswinder Singh after
thinking for sometime told that he want to get the search of our
person and car to be conducted in the presence of Gazetted Officer.
On which myself SI prepared separate dissent memos Under
Section 50 of the NDPS Act. Notice was signed by ASI Gurbachan
Singh 763/Fdk and C-2 Harjinder Singh 290/Faridkot as
witnesses. Jaswinder Singh @ Kaka signed the same in English.
Then myself SI around 04:23 PM has called the control room
Faridkot on No. 75270-17100 from my phone No. 75270- 17274
and told about the situation and requested to send the Gazetted
Officer at the spot and then around 04:29 PM, control room
intimated that DSP Sukhdeep Singh PPS (S.D.) is coming to Jaito
and then the time was around 04:31 PM myself SI from my mobile
No. 75270-17274 called to DSP Sahib Mobile No. 90564-22222
and informed about the spot and requested to reach at the spot and
then the time was around 04:58 PM DSP Sh. Sukhdeep Singh PPS
(S.D.) Jaito alongwith gunman reached at the spot on his
Government vehicle. Then myself SI informed about the situation.
DSP Sahib asked the name and address from the car driver
Jaswinder Singh Honda City No. DL-4CAH-8525 and he told his
name Jaswinder Singh @ Kaka S/o Gurinderpal Singh S/o Gurdev
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Singh R/o Village Dabrikhana Gobindgarh Bajakhana Road, PS
Jaito. Then DSP Sahib introduced himself and told him that myself
S. Sukhdeep Singh and is posted as DSP (S.D) at Jaito and is
Gazetted Officer of Punjab Police. I suspect you for having some
intoxicant material with you or in your car. I want to search your
person and your car but you have got the legal right that the
search of your person and your car can be conducted apart from
me by some other Magistrate Sahib or Gazetted Officer of Punjab
Police who can be called at the spot without delay or you can be
presented before them. On which car driver Jaswinder Singh after
thinking for sometime told that he have full faith on you and you
yourself can do the search of our person and our car. On this
consent memo under Section 50 NDPS Act were prepared and
same was signed by myself SI and ASI Gurbachan Singh 763/Fdk
as witnesses. Jaswinder Singh also signed the same in English.
Then DSP Sahib gave the directions to the myself SI to search the
car and then myself SI in the presence of DSP Sahib and witnesses
conducted the search of car No. DL-4CAH-8525 and then from the
conductor seat one yellow color printed bag and the same was tied
with zip and the same was opened and checked by myself SI and
from which gatta box of intoxicant tablets and then all boxes was
taken out from the bag and was opened and checked then each box
is having 20/20 strips each strip is having 10/10 tablets total 200
tablets mark NRX Tramadol Hydrochloride Tablets 100 mg Tridol
100 was recovered. Myself SI taken out all strips and checked the
same and on all strips the Batch No. was rubbed with the black
line and from every strip the Batch No. was missing. On each strip
MFG NOV 2023 EXP OCT 2025 MRP Rs. 220/- was written. Total
4400 intoxicant tablets were recovered. Recovered intoxicant
tablets were put in the same box and the box was marked with No.
1 to 22 and were kept in the same yellow bag and kept in the cloth
and the parcel was prepared. Then myself SI sealed the parcel with
seal mark CS and the sample seal was prepared separately and the
seal after use was handed over to ASI Gurbachan Singh 763/Fdk
and DSP Sahib has put his seal mark SS and the sample seal was
prepared separately and seal after use was kept with him. Then
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myself SI has conducted the search of the car and no documents
regarding the ownership of the car was found. Then myself SI has
taken the parcel of intoxicant tablets 4400 NRX Tramadol
Hydrochloride Tablets 100 mg Tridol 100 and sample seal and Car
Honda City No. DL-4CAH-8525 color cherry into the police
possession vide Recovery Memo. Memo was was signed by ASI
Gurbachan Singh 763/Fdk and C-2 Harjinder Singh 290/Faridkot
as witnesses and the same was testified by DSP (S.D.) Jaito. Then
myself SI has asked the DSP Sahib (S.D.) Jaito regarding the
above case and the statement u/s 161 CrPC was recorded. Then
myself SI around 06:20 PM send the DSP Sahib from the spot.
Accused Jaswinder Singh @ Kaka by keeping 4400 intoxicant
tablets in his possession has committed the offence under section
22c/61/85 NDPS Act. So by writing ruqa against Jaswinder Singh
@ Kaka S/o Gurinderpal Singh S/o Gurdev Singh R/o Village
Dabrikhana GobindgarhBajakhana Road, PS Jaito is sent to the
police station by hand through Senior/C. Balwinder Singh
864/Fdk. FIR be registered and special reports be prepared and
sent to the Higher Officials. PCR Faridkot be intimated. FIR
number be informed. I along with co-police personnel was busy in
investigation at spot. Sd/- Charanjit Singh.'
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has submitted that the son
of the present petitioner, named Sukhwinder Singh is running a licenced
retail chemist shop under the name and style of 'Dhillon Medical Store' at
Village Chandbhan, Tehsil Jaitu, District Faridkot and is holding a valid
Retail Licence on Form 20-PB- FDK-155843 and on Form 21-PB-FDK-
155844 and the same is valid from dated 10.12.2020 to 09.12.2025. He
further submits that according to the FSL Report dated 13.02.2024, the
recovered medicines labeled as Tridol-100 was manufactured by Soul
Healthcare Pvt. Ltd. and the concerned police personnel has never
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investigated from the company as to whom the recovered medicines were
sold and that company is neither arrayed as an accused nor has been
interrogated. 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 25 Prosecution Witnesses, none 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 9 months and 23
days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that the
recovery effected is commercial in nature and the petitioner was
apprehended with the alleged contraband 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
22.05.2024 and charges stands framed on 20.07.2024.
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. 9
months and 23 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 22.05.2024 charges stands framed on 20.07.2024 out
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of 25 prosecution witnesses, none has been examined so far which is
sufficient for this Court to infer that the 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.
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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.
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
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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 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
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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
29.10.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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