Punjab-Haryana High Court

Kulwinder vs State Of Punjab on 10 January, 2025

                                 Neutral Citation No:=2025:PHHC:002695




CRM-M--64074-2024                                                                1

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

253                                                   CRM-M-64074-2024
                                                    Date of decision: 10.01.202
                                                                           .2025
Kulwinder
                                                                ....Petitioner
                                           V/s
State of Punjab
                                                                ....Respondent

CORAM: HON'BLE MR. JUSTICE SUMEET GOEL
Present:     Mr. Viren Sibal, Advocate for the petitioner.
             Ms. Avneet, AAG Punjab.
                                          *****
SUMEET GOEL,
       GOEL J. (Oral)

1. Present petition has been filed under Section 439 Cr.P.C./483 /483 of

the Bharatiya Nagrik Suraksha Sanhita for grant of regular bail to the

petitioner er in case bearing FIR No.0123 No. dated 15.04.2022,, registered for the

offences punishable under Sections 22, 61 & 85 of the NDPS Act at Police

Station City Ferozepur City, District Ferozepur.

2. The case set up in the FIR in question (as set out in the present

petition by the petitioner) is as follows:-

follows:

"Station House Officer, City Ferozepur, Sat Sri Akal, Today along with Inspector ASI Narinderpal No. 628/FIRO 628/FIRO- ASI Rajpal No. 1235/FIRO, HC Joginder Singh No. 145/FIRO, Lady Senior Constable Kulbir Kaur No. N 50/FIRO PHG Sandeep Singh No. 22759 on a Government Vehicle No. PB05-R-9848 9848 whose driver ASI Sukhdev Singh No. 365/FIRO were Patrolling and checking in relation to suspicious men, in the area of the Police station Cantt Ferozepur and the police station City Ferozepur. When the police party reached Bagdadi Gate in Ferozepur city while patrolling, the informant stopped my vehicle by signalling and pulled me over to the side and informed me that Kulwinder son of Ruldu, resident of Janta Preet Nagar, Ferozepur ur City, who used to selling narcotic pills, who is still standing in an empty place adjacent to the Rai Sikh Bhawan built on Kacha Jira Road to sell narcotic pills to customers. If we go to that 1 of 13

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place now and check it, a large quantity of narcotic pills ccan an be recovered from Kulwinder. This information is solid, reliable and solid. Keeping and selling narcotic pills in his possession by the above Kulwinder fulfils the definition of crime 22 of the NDPS Act. Therefore, a case against Kulwinder under Section 22 of the NDPS Act is written and sent to the police station through Lady Senior Constable Kulbir Kaur No. 50/ FIRO. The case should be registered and the case number should be informed. Special reports should be sent to the service of the Area Magistrate and officers. PCR should be informed. I am the Inspector along with my fellow employees of the Bhairahawa Road, informant. Today, Baghdadi Gate, Ferozepur City, at 4.15 PM, Parminder Singh INSP, In charge, Narcotic Control Cell, Ferozepur, Dated 15.04.202 15.04.2022 2 Today, a case has been registered against the accused in the above mentioned police station, Mosul, and a copy of the FIR has been registered, alongwith the original FIR, in the possession of Arinda Lady, Senior Constable, Near the INSP, for investigation.

n. Special reports are being prepared and sent to the service of the Ld. Area Magistrate Sahib, and higher officials, through CT Gurpreet Singh No. 968/FERO, Wireless Message is sent to the PCR."

3. Learned counsel for the petitioner has argued that the petitioner

has been falsely implicated into the FIR in question. Learned counsel has

further submitted that no recovery, as alleged in the prosecution case, was

effected from the petitioner and rather he was picked up by the Police

official from his residence and implicated into a false case. Learned counsel

has further submitted that the mandatory provision provisions of Section 42 and

Section 50 of NDPS Act of 1985 have not been complied with and,

therefore, the prosecution case suffers from material discrepancies.. Learned

counsel has further submitted that no independent witness was ever enjoined

in the case and no explanation has been rendered for non non-joining joining of the

independent witness. Learned counsel has further referred, in extenso,, to the

zimni/interim orders passed by the trial Court, especially orders dated

27.02.2023, 10.04.2023, 05.02.2024, 02.08.2024, 03.09.2024, 16.10.2024,

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19.11.2024 & 27.11.2024 to argue that the there is delay in culmination of

the trial and the same is not attributable to the petitioner. Thus, learned

counsel has prayed for grant of regular bail to the petitioner.

4. Learned State counsel has opposed the present petition arguing

that the allegations raised are serious in nat nature ure and thus the petitioner does

not deserve the concession of the regular bail. Learned State counsel has

further submitted that the FIR in question pertains to recovery of 99.876

grams of Etizolam salt which is a commercial quantity and, therefore, the bar b

under Section 37 of the NDPS, 1985 is attracted attracted. Learned State counsel has

filed the custody certificate dated 08.01.2025 in Court today and has relied

upon the involvement of the petitioner in 03 other cases viz. 02 under the

Excise Act and 01 being under under the NDPS Act for which the petitioner stands

convicted for one month. She has,, accordingly, sought for dismissal of the

petition in hand.

5. I have heard counsel for the rival parties and have gone through

the available records of the case.

6. The petitioner was arrested on 15.04.2022 whereinafter

investigation was carried out and challan stands presented on 10.10.2022.

10.10.2022

Charges in the trial in question were framed on 23.11.2022. Total 10

prosecution witnesses have been cited, cited, out of which only 03 have been

examined till date. The rival contention of learned counsel for the parties; as

to whether the petitioner has been falsely implicated into the FIR in

question, whether mandatory provisions of Section 42 and Section 50 of the

NDPS Act of 1985 have ha been complied with or not & the weightage/veracity

of the evidence brought by the prosecution alongwith challan (final report);

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are issues of contentious nature which are essentially required to be

ratiocinated upon during the course of trial. This Court does not deem it

appropriate to delve deep into these rival contentions, at this stage, lest it

may prejudice the trial. Nothing tangible has been brought forwa forward rd to

indicate the likelihood of the petitioner absconding from the process of

justice or interfering with the remaining prosecution evidence.

7. There is another aspect nay vital aspect of the matter in hand

which craves for attention of this Court.

7.1. Long back, in Hussainara Khatoon vs. Home Secy., State of

Bihar reported as (1980) 1 SCC 81, the Hon'ble Supreme Court had

declared that the right to speedy trial of offenders facing criminal charges is

"implicit in the broad sweep and content of Artic Article le 21 as interpreted by this

Court". Remarking that a valid procedure under Article 21 is one which

contains a procedure that is "reasonable, fair and just" it was held that:

"Now Now obviously procedure prescribed by law for depriving a person of liberty cannot nnot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article

21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, d, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21."

7.2. The Hon'ble Supreme Court in a judgment titled as Abdul

Rehman Antulay vs R.S. Nayak reported as (1992) 1 SCC 225 has re-

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emphasized the right to speedy trial, and further held that an accused, facing

prolonged trial, has no option:

"The State tate or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if any accused demands speedy trial and yet he is not ot given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial. "

7.3. The Hon'ble Supreme Court in a judgment tiled as Javed

Gulam Nabi Shaikh vs. State of Maharashtra and another, 2024(3) RCR

(Ciminal) 494 has held 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 be beyond yond 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 offende offenderr commit the crime. Those factors may be social and economic, 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.

189. 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 St State ate 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 st still ill an accused; not a convict. The over-arching arching postulate of criminal jurisprudence that an

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accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

21. We are convinced that the ma manner nner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution."

"

7.4. The Hon'ble Supreme Court Court; while dealing with a bail plea in

respect of a case under NDPS Act pertaining to commercial quantity

contraband; in a judgment titled as Mohd Muslim @ Hussain vs. State

(NCT of Delhi) reported as 2023 INSC 311, has observed as under:

"21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living ing conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,068 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

22. The danger of unjust imprisonment, is that inmates are at risk of o "prisonisation' a term described by the Kerala High Court in A Convict Prisoner vs. State reported in 1993 Cri LJ 3242, as a "a radical transformation" whereby the prisoner:

"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-

Self perception changes."

23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal criminal" (also see Donald Clemmer's 'The Prison Community' published lished in 1940). Incarceration has further deleterious effect - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of

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families as well as loss of family bonds and alienation from society.

socie The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accuse accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and cconcluded speedily."

7.5. The Hon'ble Supreme Court; in a bail plea under NDPS Act

pertaining to commercial quantity; in Criminal Appeal No.245/2020 dated

07.02.2020 titled as "Chitta Chitta Biswas Alias Subhas vs. The State of West

Bengal" has held as under:-

under:

"Leave granted.

This appeal arises out of the final Order dated 30.7.2010 passed by the High Court of Calcutta in CRM No.6787 of 2019. The instant matter arises out of application preferred by the appellant under Section 439 Cr.P.C. seeking bail in connection with Criminal Case No.146 of 2018 registered with Taherpur Police Station for offence punishable under Section 21 21-C C of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According to the prosecution, the appellant was found to be in possession session of narcotic substance i.e. 46 bottles of phensydryl cough syrup containing codeine mixture above commercial quantity. The appellant was arrested on 21.07.2018 and continues to be in custody. It appears that out of 10 witnesses cited to be examin examined ed in support of the case of prosecution four witnesses have already been examined in the trial.

Without expressing any opinion on the merits or demerits of the rival submissions and considering the facts and circumstances on record, in our view, case forr bail is made out.

out."

7.6. The Hon'ble Supreme Court; in a bail plea under NDPS Act

pertaining to commercial quantity; titled as "Nitish Nitish Adhikary @ Bapan Vs.

The State of West Bengal" has held as under:

under:-

"As As per the office report dated 29.07.2022, copy ooff the show cause notice along with Special Leave Petition was supplied to the Standing Counsel for the State of West Bengal and separate notice has been

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served on the State also. However, no one has entered appearance on their behalf.

The petitioner seeks ks enlargement on bail in F.I.R. No.612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS Act, registered at Police Station Bongaon, West Bengal.

During the course of the hearing, we are informed that the petitioner has undergone custody ody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have criminal antecedents.

Taking into consideration the period of sentence undergone by the th petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.

The petitioner is accordingly, directed to be released on bail subject to him furnishing bail bbonds onds to the satisfaction of the Trial Court."

7.7. To the similar effect is the ratio decidendi of the judgments of

the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.5530- No.5530

2022 dated 22.08.20223 titled as "Mohammad Salman Hanif Shaikh vs.

The State of Gujarat"; Criminal Appeal No.1169 of 2022 dated d 05.08.2022

titled as Gopal Krishna Patra @ Gopalrusma Vs. Union of India and

Ankur Chaudhary vs. State of Madhya Pradesh 2024(4) RCR (Criminal)

7.8. The right to a speedy and expeditious trial is not only a vital

safeguard to prevent undue and oppressive incarceration incarceration; to mitigate anxiety

and concern accompanying the accusation as well as to curtail any

impairment in the ability of an accused to defend himsel himself, but there is an

overarching societal interest paving way for a speedy trial. This right has

been repeatedly actuated in the recent past and the ratio decidendi of the

above-referred referred to Supreme Court's Court s judgments have laid down a series of

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decisions opening opening up new vistas of fundamental rights. The concept of

speedy trial is amalgamated into the Article 21 as an essential part of the

fundamental right to life and liberty, liberty guaranteed and preserved under our

Constitution. The right to speedy trial begins wi with th the actual restraint

imposed at the time of the arrest of the accused and consequent incarceration

which continues at all stages, namely, the stage of investigation, inquiry,

trial, appeal and revision so that any possible prejudice that may result due to

impermissible and avoidable delay since the time of the commission of the

offence till the criminal proceedings consummate into a finality finality, could be

averted. The speedy speedy trial, early hearing and quick disposal are sine qua non

of criminal jurisprudence. The overcrowded Court Court-dockets, the heavy

volume of work and the resultant pressure on the prosecution and the Police, Police

indubitably keeps keep the entire criminal jurisprudential mechanism under stress

and strain. However, this cannot be an excuse for keeping the sword of

Damocles hanging on the accused for an indefinite period of time. It does

not serve any credit to the criminal justice system, rather it makes for a sad

state of affairs. The guarantee of a speedy trial is inte intended nded to avoid

oppression and prevent delay by imposing on the Court and the prosecution

an obligation to proceed with the trial with a reasonable dispatch. The

guarantee serves a threefold purpose. Firstly, it protects the accused against

oppressive pre-trial pre rial imprisonment; secondly, it relieves the accused of the

anxiety and public suspicion due to unresolved criminal charges and lastly, it

protects against the risk that evidence will be lost or memories dimmed by

the passage of time, thus, impairing the aability bility of the accused to defend

himself.. It goes without saying that the consequences of pre pre-trial detention

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are grave. Accused, Accused presumed innocent,, till proven otherwise, are subjected

to psychological and physical deprivations of jail jail-life, usually under onerous

conditions. Equally important, the burden of detention of such an accused

frequently falls heavily on the innocent members of his family.

There is yet another aspect of the matter which deserves

consideration at this stage. The allegations in tthe he present case relate to

accused being involved in an FIR relating to commercial quantity of

contraband under the NDPS Act, 1985.

1985. While considering a bail petition in

a case involving commercial quantity, the Court has to keep in mind the

rigours enumerated enumerated under Section 37 of NDPS Act, 1985 which mandates

that Courts can grant bail to an accused only after hearing the public

prosecutor and after having satisfied itself of twin conditions which are

reasonable grounds for believing that the accused is not guilty of the offence

charged/alleged and that, he is not likely to commit any offence while on

bail. The stringent rigours of Section 37 of the NDPS Act, 1985 must be

meticulously scrutinized against the backdrop of accused's fundamental

right to a speedy speedy trial. The right to life and personal liberty cannot be

rendered nugatory by unwarranted delays in the judicial process, particularly

where such delay(s) delay is neither attributable to the accused nor justified at the

end of the prosecution by cogent reason reasons.

s. An individual cannot be kept

behind bars for an inordinate period of time by taking refuge in rigours laid

down in Section 37 of the NDPS Act, 1985. The legislature in its wisdom,

in order to ensure speedy and timely disposal of the cases under the Act Act,, has

provided for the constitution of special Courts under Section 36 36-A A of the

Act. However, this Court cannot turn Nelson's eye to the protracted delays

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and systematic inefficiency that frustrate this legislative purpose. A Court of

law is duty-bound duty to o ensure that it does not become complicit in violation of

an individual's individual s fundamental rights, notwithst notwithstanding anding anything contained in a

statute. While dealing with bail petition in a case governed by the rigours of

Section 37 of the NDPS Act, 1985, the Cou Court rt must strike a judicious balance

between the legislative intent to curb the menace of drugs and the sacrosanct

right of the accused to a fair and expeditious trial. Prolonged incarceration,

without justifiable cause, risks transforming pre pre-trial detention on into punitive

imprisonment, an outcome antithetical to the principle of justice and equity.

Ergo,, the unequivocal inference is that where the trial has failed

to conclude within a reasonable time, time resulting in prolonged incarceration, it

militates against the precious fundamental rights of life and liberty granted

under the law and, as such, conditional liberty overriding the statutory

embargo created under Section 37 of the NDPS Act, 1985 ought to be

considered as per facts of a given case. In other er words, grant of bail in a

case pertaining to commercial quantity, on the ground of undue delay in

trial, cannot be said to be fettered by Section 37 of the NDPS Act, 1985.

8. Reverting to the facts of the case in hand; aass per the custody

certificate dated dated 08.01.2025 filed by the learned State counsel in Court

today, the petitioner has suffered incarceration for more than 02 years and 08

months. A perusal of the zimni orders dated 27.02.2023, 10.04.2023,

05.02.2024, 02.08.2024, 03.09.2024, 16.10.2024, 19.11.2024 & 27.11.2024

indicates that the trial is procrastinating,, conclusion thereof is not visible in

near future and the delay in culmination thereof cannot be attributed to the

petitioner. In fact, fact a perusal of the zimni orders passed by the trial Court

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indicate that repeatedly summons as also bailable warrants have been issued

against the Police officials who have not turned up to have their testimonies

recorded as prosecution witnesses. The long inordinate custody of the

petitioner as an undertrial, without him being responsible for procrastination

of the trial, entitles him to grant of regular bail in the factual matrix of the

case in hand.

Suffice to say, further detention of the petitioner as an undertrial

iss not warranted in the facts and circumstances of the case.

9. In view of above, the present petition is allowed. Petitioner is

ordered to be released on regular bail on his furnishing bail/surety bonds to

the satisfaction of the concerned trial Court Court/Duty uty Magistrate. However, in

addition to conditions that may be imposed by the concerned trial

Court/Duty Magistrate, the petitioner shall remain bound by the following

conditions:

conditions:-

                      (i)     The petitioner shall not mis
                                                       mis-use
                                                           use the liberty granted.
                      (ii)    The petitioner shall not tamper with any evidence, oral
                              or documentary, during the trial.

(iii) The petitioner shall not absent himself on any date before the trial.

(iv) The petitioner shall not commit any offence while on bail.

(v) The petitioner shall deposit his passport, if any, with the trial Court.

(vi) The petitioner shall give his cellphone number to the Investigating Officer/SHO of concerned Police Station and shall not change his cell cell-phone phone number without prior permission of the ttrial rial Court/Illaqa Magistrate.