Punjab-Haryana High Court
Sukhjinder Singh vs Union Of India on 6 September, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:117081
CRM-M-17636-2023 -1-
201
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-17636-2023
Date of decision: 06.09.2024
SUKHJINDER SINGH
...Petitioner
VERSUS
UNION OF INDIA
...Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. D. S. Virk, Advocate for the petitioner.
Ms. Puneeta Sethi, Senior Panel Counsel for the respondent-UOI.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present is a third petition filed under Section 439 of the Code
of Criminal Procedure for the grant of regular bail to the petitioner in NCB
Crime No.08 dated 04.02.2021, under Sections 8, 18, 27-A, 28, 29, 30 and 60 of
the NDPS Act, registered at Police Station Nacrotics Control Bureau,
Chandigarh Zonal Unit, Chandigarh.
2. Learned counsel for the petitioner submitted that the petitioner is in
custody for 2 years and 9 months and in fact on the basis of the long custody
when the trial was not progressing, he was granted the benefit of interim bail by
this Court vide order dated 14.11.2023. He further submitted that the petitioner,
namely, Sukhjinder Singh is present in the Court today and he identifies him.
He further submitted that after the grant of interim bail to the petitioner, he has
not jumped the interim bail and has also not violated any of the conditions of
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interim bail and since he is present in the Court today and the prayer is for grant
of regular bail, he may be considered to be in the deemed custody of this Court
so as to consider the prayer of the petitioner for grant of regular bail.
3. Learned counsel for the petitioner submitted that after excluding
the period of interim bail, the total custody of the petitioner comes out to be 2
years and 9 months and only 7 prosecution witnesses have been examined till
date. He further submitted that the allegations in the present case were with
regard to recovery of 2.78 kgs. of opium from the vehicle in which the
petitioner and another co-accused were travelling and therefore, allegedly the
recovery of the aforesaid opium was from two persons even as per the
prosecution. He further submitted that the commercial quantity of opium under
the NDPS Act is 2.5 kgs. and the alleged recovery in the present case was
marginally higher than the aforesaid commercial quantity as defined under the
NDPS Act. He further submitted that considering the long custody of the
petitioner and also the judgments of Hon'ble Supreme Court in Satender
Kumar Antil versus Central Bureau of Investigation and another, [2022 (10)
SCC 51], Mohd. Muslim @ Hussain versus State (NCT of Delhi), 2023 AIR
(SC) 1648, Dheeraj Kumar Shukla versus The State of Uttar Pradesh, 2023
SCC Online SC 918 and Rabi Prakash versus The State of Odisha, Special
Leave to Appeal (Criminal) No.4169 of 2023, he may be considered for the
grant of regular bail.
4. Learned counsel for the petitioner also submitted that the bar
contained under Section 37 of the NDPS Act will not apply to the petitioner in
view of the fact that the aforesaid alleged recovery of opium was from the
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vehicle and not from the person of the petitioner. He further submitted that even
otherwise also the bar contained under Section 37 of the NDPS Act will not
apply in the present case in view of the long custody of the petitioner i.e. 2
years and 9 months and in light of the aforesaid judgments passed by Hon'ble
Supreme Court because the petitioner would be entitled for the grant of regular
bail in light of Article 21 of the Constitution of India.
5. On the other hand, Ms. Puneeta Sethi, Senior Panel Counsel for the
respondent-UOI submitted that it is correct that the petitioner is in custody for 2
years and 9 months after excluding the period of interim bail granted to him.
She further submitted that after the grant of interim bail to the petitioner, he has
not violated any of the conditions of interim bail. She has however opposed the
grant of regular bail to the petitioner on the ground that the aforesaid recovery
of opium, although marginally higher, falls in the category of commercial
quantity under the NDPS Act and therefore, the prayer of the petitioner is hit by
the bar contained under Section 37 of the NDPS Act. She referred to the
judgment passed by Hon'ble Supreme Court in State by the Inspector of Police
versus B. Ramu, Criminal Appeal No(s).000801 of 2024 (Arising out of SLP
(Criminal) No(s). 8137 of 2022) in this regard. She also submitted that the
petitioner is involved in one more case under the NDPS Act, in which there was
a recovery of 8 kgs. of poppy husk from him.
6. I have heard the learned counsels for the parties.
7. The total custody of the petitioner has come out to be 2 years and 9
months after excluding the period of interim bail granted to him. The mere fact
that the petitioner is involved in one more case under the NDPS Act as
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aforesaid involving recovery of 8 kgs. of poppy husk from him, which is not
even a commercial quantity would not become a ground for not considering the
regular bail petition of the petitioner. Learned counsel for the petitioner stated
that the petitioner who was granted interim bail by this Court on 14.11.2023
because of non-progress of the trial, is present in the Court today and the
learned counsel for the petitioner has identified the petitioner. Therefore, the
petitioner is considered to be in the deemed custody of this Court.
8. The petitioner was granted interim bail by this Court on 14.11.2023
because of non-progress of the trial and in light of the aforesaid judgments of
Hon'ble Supreme Court. As per both the learned counsel for the parties, the
petitioner has neither jumped the interim bail nor has he violated any of the
conditions of interim bail. The alleged recovery of 2.78 kgs. of opium was made
from the vehicle and not from the person of the petitioner and the another
co-accused. As per the NDPS Act, the commercial quantity as defined under the
NDPS Act is 2.5 kgs. of opium and therefore, even as per the prosecution, the
recovery is marginally higher than the commercial quantity.
9. Learned Senior Panel Counsel for the respondent-UOI has referred
to judgment passed by Hon'ble Supreme Court in B. Ramu's case (supra) to
contend that when the quantity is high, then the Courts should be slow in
considering the grant of regular bail. The aforesaid judgment would be
distinguishable on facts in view of the fact that in the aforesaid judgment the
matter was pertaining to recovery of very huge quantity of ganja i.e. 232.5 kgs.,
which is so stated in para No.3 of the aforesaid judgment. However, in the
present case, the aforesaid alleged recovery from the vehicle in which the
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petitioner and another co-accused were travelling was marginally higher than
the commercial quantity and therefore, the aforesaid judgment in B. Ramu's
case (supra) would be distinguishable on facts.
10. Hon'ble Supreme Court in Satender Kumar Antil's case (supra)
has discussed this serious issue with regard to delay in trial and its effect on the
Right to Life of an individual under Article 21 of the Constitution of India. Para
49 of the aforesaid judgment is reproduced as under:-
"49. Sub-section (1) mandates courts to continue the
proceedings on a day-to-day basis till the completion of the
evidence. Therefore, once a trial starts, it should reach the
logical end. Various directions have been issued by this
Court not to give unnecessary adjournments resulting in the
witnesses being won over. However, the non-compliance of
Section 309 continues with gay abandon. Perhaps courts
alone cannot be faulted as there are multiple reasons that
lead to such adjournments. Though the section makes
adjournments and that too not for a longer time period as an
exception, they become the norm.
We are touching upon this provision only to show that any
delay on the part of the court or the prosecution would
certainly violate Article 21. This is more so when the
accused person is under incarceration. This provision must
be applied inuring to the benefit of the accused while
considering the application for bail. Whatever may be the
nature of the offence, a prolonged trial, appeal or a revision
against an accused or a convict under custody or
incarceration, would be violative of Article 21. While the
courts will have to endeavour to complete at least the
recording of the evidence of the private witnesses, as
indicated by this Court on quite a few occasions, they shall
make sure that the accused does not suffer for the delay
occasioned due to no fault of his own".
11. Hon'ble Supreme Court in Mohd. Muslim @ Hussain's case
(supra) has dealt with this issue with regard to delay in trial and long custody of
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the accused person vis-a-vis the bar contained under Section 37 of the NDPS
Act. The relevant portion of the aforesaid judgment contained in para Nos.19
and 20 are reproduced as under:-
19. A plain and literal interpretation of the conditions under
Section 37 (i.e., that Court should be satisfied that the
accused is not guilty and would not commit any offence)
would effectively exclude grant of bail altogether, resulting
in punitive detention and unsanctioned preventive detention
as well. Therefore, the only manner in which such special
conditions as enacted under Section 37 can be considered
within constitutional parameters is where the court is
reasonably satisfied on a prima facie look at the material on
record (whenever the bail application is made) that the
accused is not guilty. Any other interpretation, would result
in complete denial of the bail to a person accused of
offences such as those enacted under Section 37 of the
NDPS Act.
20. The standard to be considered therefore, is one, where
the court would look at the material in a broad manner, and
reasonably see whether the accused's guilt may be proved.
The judgments of this court have, therefore, emphasized that
the satisfaction which courts are expected to record, i.e., that
the accused may not be guilty, is only prima facie, based on
a reasonable reading, which does not call for meticulous
examination of the materials collected during investigation
(as held in Union of India v. Rattan Malik). Grant of bail on
ground of undue delay in trial, cannot be said to be fettered
by Section 37 of the Act, given the imperative of Section
436A which is applicable to offences under the NDPS Act
too (ref. Satender Kumar Antil supra). Having regard to
these factors the court is of the opinion that in the facts of
this case, the appellant deserves to be enlarged on bail.
12. Hon'ble Supreme Court in Dheeraj Kumar Shukla's case (supra)
has observed as under:-
"3. It appears that some of the occupants of the 'Honda
City' Car including Praveen Maurya @ Puneet Maurya
have since been released on regular bail. It is true that the
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quantity recovered from the petitioner is commercial in
nature and the provisions of Section 37 of the Act may
ordinarily be attracted. However, in the absence of criminal
antecedents and the fact that the petitioner is in custody for
the last two and a half years, we are satisfied that the
conditions of Section 37 of the Act can be dispensed with at
this stage, more so when the trial is yet to commence though
the charges have been framed."
13. Hon'ble Supreme Court in Rabi Prakash's case (supra) 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
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."
14. After hearing learned counsel for the parties and considering the
aforesaid facts and circumstances of the present case, this Court is of the view
that considering the long custody of the petitioner i.e. 2 years and 9 months and
the fact that only 7 prosecution witnesses have been examined till date and the
alleged recovery of opium is marginally higher than the commercial quantity as
defined under the NDPS Act and that too from the vehicle in which the
petitioner and another co-accused were travelling, the bar contained under
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Section 37 of the NDPS Act will not apply to the petitioner in light of Article 21
of the Constitution of India and also in light of aforesaid judgments of Hon'ble
Supreme Court.
15. Consequently, the present petition is allowed. The interim bail
granted by this Court on 14.11.2023 is made absolute. The petitioner shall
remain on same bails/surety bonds.
16. However, anything observed hereinabove shall not be treated as an
expression of opinion on the merits of the case and is meant for the purpose of
deciding the present petition only.
(JASGURPREET SINGH PURI)
06.09.2024 JUDGE
Chetan Thakur
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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