Vipan Kumar vs State Of Haryana And Anr
2025 Latest Caselaw 3283 P&H

Punjab-Haryana High Court

Vipan Kumar vs State Of Haryana And Anr on 17 March, 2025

Author: Sandeep Moudgil

Bench: Sandeep Moudgil

                                       Neutral Citation No:=2025:PHHC:036010


CRM-M-11913-2025 (O&M)                                                         1


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

119                          CRM-10692-2025 in/and
226                          CRM-M-11913-2025
                             DATE OF DECISION: 17.03.2025


       VIPAN KUMAR                                   ...PETITIONER


                       Versus


       STATE OF HARYANA AND ANR. ... RESPONDENT


CORAM:         HON'BLE MR. JUSTICE SANDEEP MOUDGIL


Present:       Mr. J.S. Gill, Advocate with
               Mr. Lakhan Paul Garg, Advocate for the petitioner(s).

               Mr. Chetan Sharma, DAG, Haryana.

               Mr. T.S. Sullar, Advocate
               Central Government Counsel for respondent No.2.


        ***
SANDEEP MOUDGIL, J (ORAL)

CRM-10692-2025

This application has been filed for placing on record reply

by way of affidavit of Rahul Chaudhary, Sub Inspector, NCB, Chandigarh

Zone Unit.

For the reasons mentioned in the application and keeping in

view the submission made by counsel for the applicant, the application is

allowed reply by way of affidavit of Rahul Chaudhary, Sub Inspector,

NCB, Chandigarh Zone Unit is taken on record.

1. Prayer

This petition has been filed under Section 483 of BNSS

2023 for Grant of Regular bail to the petitioner in Case

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FIR/F.No.NCB/CZU/Cr. No. 23/2024 dated 10.12.2024 u/s 8,15,29 of

NDPS Act, 1985 P.S. NCB Chandigarh during the pendency of the trial.

2. As per prosecution story the petitioner alongwith co-accused

Anil kumar was arrested at Ambala cantt. Railway station on the basis of

secret information received by the NCB Chandigarh and on search from

the trolley bag of the petitioner 18.920 kgs of poppy husk was recovered

and from the trolley bag of co-accused Anil kumar three packets

containing 6.560 kgs, 3.100 kgs and 10.360 kgs of poppy husk was

recovered, thus in total 38.920 kgs of poppy husk was shown to be

recovered from possession of the petitioner and co-accused Anil kumar.

3. Contentions

On behalf of the petitioner

Learned counsel for the petitioner has argued that it is an

admitted fact that from the trolley bag of the petitioner 18.920 kg of

poppy husk was recovered which is non-commercial in the quantity. He

submits that no further recovery is to be made from the petitioner,

therefore no fruitful purpose would be served by keeping the petitioner

behind the bars. He has further argued that the antecedents of the

petitioner are clean, therefore, prays for grant of regular bail to the

petitioner.

On behalf of the State and counsel for respondent No.2

On the other hand, learned State Counsel and counsel for

respondent No.2 appearing on advance notice, accepts notice on behalf of

respondents and has filed the custody certificate of the petitioner, which is

taken on record, according to which, the petitioner is behind bars for 2

months and 29 days and on instructions from Investiigating Officer

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oppose the prayer for grant of regular bail but is not in a 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 the petitioner has already suffered sufficient incarceration i.e. 2

months and 29 days, the recovery effected from the petitioner is non-

commercial in nature and no further recovery is to be effected from the

petition, moreo, the petitioner is not a habitual offender as he is not

involved in any other case, 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 but charges are yet to be framed 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

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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 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.

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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, 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

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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. Relief

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
17.03.2025
anuradha


Whether speaking/reasoned        Yes/No
Whether reportable               Yes/No36




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