Punjab-Haryana High Court
Deepak Kumar vs State Of Punjab on 14 January, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:004364
CRM-M-254-2025 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
235 CRM-M-254-2025
DATE OF DECISION: 14.01.2025
DEEPAK KUMAR ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr.Mohd. Jameel, 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 Bhartiya
Nagrik Suraksha Sanhita 2023 for grant of regular bail to the petitioner
in F.I.R. No.88 dated 24.07.2023, Under Section 22 of Narcotic Drugs
and Psychotropic Substances Act, 1985, Police Station City-II,
Malerkotla, District Malerkotla (Annexure P- 1).
2. Prosecution story set up in the present case as per the
version in the FIR reads as under :-
'Station House Officer, Police Station City-2, Malerkotla,
Jai, Hind. Today 1 SI alongwith ASI Harjit Singh Number
496/SGR, S.C. Amritpal Singh 1251/Sangrur, C Tejvir Singh
Number 1992/SGR were present at Grid Chowk, Malerkotla for
checking of suspicious persons and vehicles in official vehicle
bearing registration No. PB-65-BA-8115 being driven by SC
Nirbhai Singh 990/SGR alongwith laptop, Inverter, Printer etc.
then at about 07:30 PM, a secret informer came to me and
informed that Deepak Kumar son of Nand Lal, resident of Azad
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Nagar, at present Ravidas Nagar, Malerkotla is habitual of
selling intoxicant tablets by taking from outside. Today also,
Deepak Kumar is waiting for his customers for selling intoxicant
tablets near his house. If a raid is conducted near the house of
Deepak Kumar with planning then Deepak Kumar can be nabbed
and intoxicant tablets in huge quantity can be recovered from his
possession. His description is that slim body, mulla fashioned,
average colour, and he is wearing red color T-shirt and blue
colored lower. Information is confirmed and reliable. Then I SI
on the basis of information, alongwith official companions raided
near the house of Deepak Kumar and at that time, it was about
8:00 p.m. then as per description of informer, one person in front
of gate of his house was standing in the light of lights who was
carrying white coloued plastic carry bag in his right hand whoon
seeing police party coming towards him threw carry bag carrying
in right hand and tried to run away. I St with the help of official
companions nabbed him and asked his whereabouts who
disclosed his name as Deepak Kumar son of Nand Lal, resident of
Azad Nagar, at present Ravidas Nagar, Malerkotla. Then I SI
check the carry bag thrown by Deepak Kumar in torch light in
which strips of tablets were seen, carry bag was tied. Then I SI
after opening the nob of carry bag checked the same and total 30
strips each containing 60/60 tablets total 1800 intoxicant tables
Mark Alprasaef 0.5 NRX Alprazolam Tablets IP 0.5 mg, all are
having batch No. PCCAA872 Mfg. Date 12/2021, Ex. Date
11/2024 were recovered. Thereafter, I SI after keeping the
recovered intoxicant tablets in the same plastic carry bag and
thereafter placing the whit coloured plastic carrying back in cloth
carry bag, prepared a parcel. Then parcels of intoxicant tablets
were sealed by 1 Sl with my seal impression S.S. Sample seal was
separately prepared. Seal after use was handed over to ASI Harjit
Singh No.496/SGR. Then I SI took parcel of intoxicant tables duly
sealed alongwith sample seal in police custody vide separate
memo. Witnesses put their respective signature on the memo.
Hence, Deepak Kumar has committed an offence under Section
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22/61/85 NDPS Act by possessing intoxicant tablets. Thereafter, I
Sl typed ruqa for registration of case under Section 22/61/85
NDPS Act against Deepak Kumar son of Late Nand Lal, resident
of Azad Nagar, at present Ravidas Nagar, Malerkotla in laptop
and after getting it print the same is being sent to police station
City-2 Malerkotla through C Tejvir Singh No.1992/SGR. After
registration, case number be intimated. Special reports be issued.
Control Room Malerkotla be informed. I am busy in
investigation. Today in the area of Ravidas Nagar, Near Choti
Eidgah, Malerkotla.'
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 as no
independent witness was joined at the time of search of the petitioner
and also it is highly improbable that petitioner would wait outside his
house at night for the customers to sell the intoxicating tablets and
therefore, submits that he has been falsely roped.
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 16 days.
Learned State Counsel on instructions from the
Investigating Officer opposes the prayer for grant of regular bail stating
that 1800 intoxicating tablets were recovered and the petitioner is a
habitual offender as he is involved many other FIRs but is not in a
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position to controvert the submissions made by learned counsel for the
petitioner.
4. Analysis
Be that as it may, from the above discussion, it can be
culled out that though 1800 tablets have been alleged to be recovered
from the petitioner, there is gross violation of the mandate of Section 42
and 50 of NDPS Act wherein no independent witness was joined while
making the search of the petitioner and the petitioner has already
suffered sufficient incarceration i.e. 1 year, 5 months and 16 days 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 15.01.2024
charges stands framed on 13.03.2024 out of 15 prosecution witnesses,
only one PW 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
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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
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
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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 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,
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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.
As far as the pendency of other cases and involvement of
the petitioner in other cases is concerned, reliance can be placed upon
the order of this Court rendered in CRM-M-25914-2022 titled as
"Baljinder Singh alias Rock vs. State of Punjab" decided on
02.03.2023, wherein, while referring Article 21 of the Constitution of
India, this Court has held that no doubt, at the time of granting bail, the
criminal antecedents of the petitioner are to be looked into but at the
same time it is equally true that the appreciation of evidence during the
course of trial has to be looked into with reference to the evidence in
that case alone and not with respect to the evidence in the other pending
cases. In such eventuality, strict adherence to the rule of denial of bail
on account of pendency of other cases/convictions in all probability
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would land the petitioner in a situation of denial of the concession of
bail.
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.
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
14.01.2025
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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