Punjab-Haryana High Court
Bijender vs State Of Haryana on 18 September, 2024
Neutral Citation No:=2024:PHHC:123343
CRM-M-25373-2024(O&M) - 1-
211
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-M-25373-2024(O&M)
Date of decision: 18.09.2024
BIJENDER ....Petitioner
Versus
STATE OF HARYANA ...Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Vikram Rana, Advocate
for the petitioner.
Mr. Bhupender Singh, DAG, Haryana.
KULDEEP TIWARI, J.(Oral)
1. Through the instant petition, the petitioner craves for indulgence of
this Court for his being enlarged on regular bail, in case FIR No.146, dated
04.03.2020, under Section 20 of the Narcotic Drugs and Psychotropic Substance
Act, 1985 (hereinafter referred to as 'NDPS Act'), registered at Police Station
Samalkha, District Panipat.
FACTS OF THE CASE
2. The petitioner in the instant FIR was granted the relief of regular bail
by the learned trial court concerned vide order dated 17.06.2020, and thereupon on
account of his absence before that Court, warrants of arrest were issued against
him, vide order dated 11.10.2021 (Annexure P-3). Finally, the petitioner was
arrested in some different FIR, and thereafter, he was produced before the learned
trial court concerned, in the instant FIR, by way of a production warrants on dated
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23.11.2021 (Annexure P-4), and till then the petitioner is behind bars in this
instant FIR.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. The learned counsel for the petitioner, in his asking for the
hereinabove extracted relief, submits that the petitioner has suffered incarceration
of more than 3 years, as on today, and the conclusion of the trial would take a long
time as it is in the midway.
4. He further submits that the present petitioner is not involved in any
other criminal case for the commission of offence(s) of a similar nature.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
5. Per contra, the learned State counsel, has vociferously opposed the
grant of regular bail to the petitioner, and submits that the petitioner was earlier
granted regular bail by the learned trial court concerned vide order (supra), while
wrongly considering that the alleged contraband recovered from the present
petitioner, falls within the ambit of intermediate quantity.
6. He further submits that in fact the recovery effected from the present
petitioner is 1.525 k.g.of charas, which is admittedly falls within the ambit of
commercial quantity.
7. He has also placed on record a custody certificate qua the petitioner,
which reflects that the petitioner has suffered incarceration of 03 years 01 month
and 21 days, as on today, and, though he is shown to have been involved in three
other criminal case, but not of a similar nature.
8. Learned State counsel on instructions, imparted to him by the police
official concerned, submits that out of the total 13 prosecution witnesses cited in
the final report, only 6 have been examined, till date and the next date before the
learned trial court concerned, is 18.10.2024.
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ANALYSIS
9. Before embarking upon the process of evaluating the arguments
addressed by the learned counsels for the parties and penning down any opinion
upon the instant petition, it is deemed imperative to capture an overview of some
significant legal propositions.
10. "Bail is the Rule and Jail is an Exception". This basic principle of
criminal jurisprudence was laid down by the Hon'ble Supreme Court, way back in
1978, in its landmark judgment titled "State of Rajasthan V. Balchand alias
Baliay", 1977 AIR 2447, 1978 SCR (1) 535. This principle finds its roots in one
of the most distinguished fundamental rights, as enshrined in Article 21 of the
Constitution of India. Though the underlying objective behind detention of a
person is to ensure easy availability of an accused for trial, without any
inconvenience, however, in case the presence of an accused can be secured
otherwise, then detention is not compulsory.
11. The right to a speedy trial is one of the rights of a detained person.
However, while deciding application for regular bail, the Courts shall also take
into consideration the fundamental precept of criminal jurisprudence, which is
"the presumption of innocence", besides the gravity of offence(s) involved.
12. In "Gurbaksh Singh Sibbia v. State of Punjab", (1980) 2 SCC 565
at 586-588, the purpose of granting bail is set out by the Hon'ble Supreme Court
with great felicity as follows:-
"27. It is not necessary to refer to decisions which deal with the
right to ordinary bail because that right does not furnish an exact
parallel to the right to anticipatory bail. It is, however,
interesting that as long back as in 1924 it was held by the High
Court of Calcutta in Nagendra v. King Emperor, AIR 1924
Calcutta 476 (479, 480) that the object of bail is to secure the
attendance of the accused at the trial, that the proper test to be
applied in the solution of the question whether bail should be
granted or refused is whether it is probable that the party will
appear to take his trial and that it is indisputable that bail is not
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to be withheld as a punishment. In two other cases which,
significantly, are the 'Meerut Conspiracy cases observations are
to be found regarding the right to bail which deserve a special
mention. In K.N. Joglekar v. Emperor, AIR 1931 Allahabad 504
(SB) it was observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code, that it
conferred upon the Sessions Judge or the High Court wide
powers to grant bail which were not handicapped by the
restrictions in the preceding Section 497 which corresponds to
the present Section 437. It was observed by the Court that there
was no hard and fast rule and no inflexible principle governing
the exercise of the discretion conferred by Section 498 and that
the only principle which was established was that the discretion
should be exercised judiciously. In Emperor v. H.L. Hutchinson,
AIR 1931 Allahabad 356 at p. 358 it was said that it was very
unwise to make an attempt to lay down any particular rules
which bind the High Court, having regard to the fact that the
legislature itself left the discretion of the Court unfettered.
According to the High Court, the variety of cases that may arise
from time to time cannot be safely classified and it is dangerous
to make an attempt to classify the cases and to say that in
particular classes a bail may be granted but not in other classes.
It was observed that the principle to be deduced from the various
sections in the Criminal Procedure Code was that grant of bail is
the rule and refusal is the exception. An accused person who
enjoys freedom is in a much better position to look after his case
and to properly defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled to freedom
and every opportunity to look after his own case. A presumably
innocent person must have his freedom to enable him to establish
his innocence.
XX XX XX
29. In Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118
it was observed by Goswami, J., who spoke for the Court, that
"there cannot be an inexorable formula in the matter of granting
bail. The facts and circumstances of each case will govern the
exercise of judicial discretion in granting or cancelling bail".
30. In American Jurisprudence (2d, Vol. 8, page 806, para 39) it
is stated :
"Where the granting of bail lies within the discretion of the
court, the granting or denial is regulated, to a large extent,
by the facts and circumstances of each particular case.
Since the object of the detention or imprisonment of the
accused is to secure his appearance and submission to the
jurisdiction and the judgment of the court, the primary
inquiry is whether a recognizance or bond would effect
that end."
It is thus clear that the question whether to grant bail or
not depends for its answer upon a variety of circumstances, the
cumulative effect of which must enter into the judicial verdict.
Any one single circumstance cannot be treated as of universal
validity or as necessarily justifying the grant or refusal of bail."
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13. Also, in "Gudikanti Narasimhulu and others Versus Public
Prosecutor, High Court of Andhra Pradesh", 1978 AIR (Supreme Court) 429,
the Hon'ble Supreme Court, speaking through Krishna Iyer, J., has enunciated the
principles of bail thus :
"9. Thus the legal principle and practice validate the court
considering the likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the process of
justice. It is not only traditional but rational, in this context, to
enquire into the antecedents of a man who is applying for bail to
find whether he has a bad record-particularly a record which
suggests that he is likely to commit serious offences while on bail.
In regard to habitual, it is part of criminological history that a
thoughtless bail order has enabled the bailee to exploit the
opportunity to inflict further crimes on the member of society. Bail
discretion, on the basis of evidence about the criminal record of a
defendant, is therefore not an exercise in irrelevance.
10. The significance and sweep of Article 21 make the deprivation
of liberty a matter of grave concern and permissible only when the
law authorising it is reasonable, even-handed and geared to he
goals of community good and State necessity spelt out in Article
19. Indeed, the considerations I have set out as criteria are
germane to the constitutional proposition I have deduced.
Reasonableness postulates intelligent care and predicates that
deprivation of freedom by refusal of bail is not for punitive
purpose but for the bi-focal interests of justice - to the individual
involved and society affected.
11. We must weight the contrary factors to answer the test the
reasonableness, subject to the need for securing the presence of
the bail applicant. It makes sense to assume that a man on bail
has a better chance to prepare of present his case than one
remanded in custody. And if public justice is to be promoted.
mechanical detention should be demoted. In the United States,
which has a constitutional perspective close to ours, the function
of bail is limited, 'community roots' of the applicant are stressed
and, after the Vera Foundation's Manhattan Bail Project,
monetary suretyship is losing ground. The considerable public
expense in keeping in custody where no danger of disappearance
or disturbance can arise, is not a negligible consideration.
Equally important is the deplorable condition, verging on the
inhuman, of our sub-jails, that the unrewarding cruelty and
expensive custody of avoidable incarceration makes refusal of bail
unreasonable and a policy favouring release justly sensible.
12. A few other weighty factors deserve reference. All
deprivation of liberty is validated by social defence and individual
correction along an anti-criminal direction. Public justice is
central to the whole scheme of bail law. Fleeing justice must be
forbidden but punitive harshness should be minimised. Restorative
devices to redeem the man, even through community service,
meditative drill, study classes or other resources should be
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innovated, and playing foul with public peace by tampering with
evidence, intimidating witnesses or committing offences while on
judicially sanctioned 'free enterprise', should be provided against.
No seeker of justice shall play confidence tricks on the court or
community. Thus, conditions may be hung around bail orders, not
to cripple but to protect. Such is the holistic jurisdiction and
humanistic orientation invoked by the judicial discretion
correlated to the values of our Constitution.
13. Viewed from this perspective, we gain a better insight into
the rules of the game. When a person, charged with a grave
offence, has been acquitted at a stage, has the intermediate
acquittal pertinence to a bail plea when the appeal before this
Court pends? Yes, it has. The panic which might prompt the
accused to jump the gauntlet of justice is less, having enjoyed the
confidence of the court's verdit once. Concurrent holdings of guilt
have the opposite effect. Again, the ground for denial of
provisional release becomes weaker when the fact stares us in the
face that a fair finding if that be so - of innocence has been
recorded by one court. It may not be conclusive, for the judgment
of acquittal may be ex facie wrong, the likelihood of desperate
reprisal, if enlarged, may be a deterrent and his own safety may
be more in prison than in the vengeful village where feuds have
provoked the violent offence. It depends. Antecedents of the man
and socio-geographical circumstances have a bearing only from
this angle. Police exaggerations of prospective misconduct of the
accused, if enlarged, must be soberly sized up lest danger of
excesses and injustice creep subtly into the discretionary curial
technique. Bad record and policy prediction of criminal prospects
to invalidate the bail plea are admissible in principle but shall not
stampede the court into a complacent refusal."
14. The Hon'ble Supreme Court in "Rabi Prakash Versus The State of
Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023, 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)
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of the NDPS Act."
15. In the recent judgment passed by the Hon'ble Supreme Court in
Javed Gulam Nabi Shaikh Vs. State of Maharashtra and another, 2024 (3) RCR
(Criminal), 494, it has been specifically held that the right to speedy trial of
offenders facing criminal charges is implicit in the broad sweep and content of
article 21. The relevant extract of the same reads as under:-
18. Criminals are not born out but made. The human
potential in everyone is good and so, never write off any
criminal as beyond redemption. This humanist fundamental is
often missed when dealing with delinquents, juvenile and adult.
Indeed, every saint has a past and every sinner a future. When
a crime is committed, a variety of factors is responsible for
making the offender commit the crime. Those factors may be
social and economic, may be, the result of value erosion or
parental neglect; may be, the result of value erosion or parental
neglect; may be, because of the stress of circumstances, or the
manifestation of temptations in a milieu of affluence contrasted
with indigence or other privations.
19. If the State or any prosecuting agency including the court
concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as
enshrined under Article 21 of the Constitution then the State or
any other prosecuting agency should not oppose the plea for
bail on the ground that the crime committed is serious. Article
21 of the Constitution applies irrespective of the nature of the
crime.
20. We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of criminal
jurisprudence that an accused is presumed to be innocent until
proven guilty cannot be brushed aside lightly, howso- ever
stringent the penal law may be.
16. This Court has examined the instant petition on the touchstone of the
hereinabove extracted settled legal principle(s) of law, and is of the considered
opinion that the instant petition is amenable for being allowed.
17. The reason for forming the above inference emanates from the factum
that:- (i) the petitioner has suffered incarceration of 03 years, 01 month and 21
days, as on today; (ii) he is not involved in any other criminal case under NDPS
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Act; (iii) the trial is in midway as out of the total 13 prosecution witnesses only 06
have been examined till date, therefore, conclusion of the trial would take a long
time, and further incarceration of the petitioner is unwarranted.
FINAL ORDER
18. Considering the hereinabove made discussion, this Court deems it fit
and appropriate to grant the concession of regular bail to the petitioner. Therefore,
without commenting upon the merits and circumstances of the present case, the
present petition is allowed. The petitioner is ordered to be released on bail on
furnishing of bail bond and surety bond to the satisfaction of concerned Chief
Judicial Magistrate/trial Court/Duty Magistrate.
19. However, it is clarified that if in future, the petitioner is found
indulging in commission of similar offences, as are involved herein, the
respondent-State shall be at liberty to make an appropriate application seeking
cancellation of regular bail, as granted by this Court. Moreover, anything
observed here-in-above shall have no effect on the merits of the trial and is meant
for deciding the present petition only.
20. However, anything observed here-in-above shall have no effect on
the merits of the trial, and is only meant for deciding the present petition.
21. All pending application(s), if any, also stand disposed of accordingly.
(KULDEEP TIWARI)
18.09.2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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