Punjab-Haryana High Court
Jagbir vs The State Of Haryana on 10 September, 2024
Neutral Citation No:=2024:PHHC:118814
CRM-M-11166-2024 (O&M) -1-
213
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-9771-2024 in/and
CRM-M-11166-2024
Date of Decision : 10.09.2024
JAGBIR .....Applicant/Petitioner
VERSUS
THE STATE OF HARYANA .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Ms. M.N.Jogira Advocate with
Mr. Ravi Kumar, Advocate,
for the applicant/petitioner.
Mr. Bhupender Singh, DAG, Haryana.
KULDEEP TIWARI. J.(Oral)
CRM-9771-2024
1. Leave granted.
CRM-M-11166-2024
2. Through the instant petition, the petitioner craves for
indulgence of this Court for his being enlarged on regular bail, in case
FIR No.28, dated 05.02.2023 (Annexure P-1), under Sections
20(b)(ii)(c)/61/85 of the NDPS Act, registered at Police Station Charkhi
Dadri, District Charkhi Dadri.
ALLEGATIONS AGAINST THE PETITIONER
2. The petitioner was arrested on 05.02.2023 in the instant FIR,
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and the allegation against him is that, he carrying 1.250 kg.of charas,
which admittedly falls under the commercial quantity.
3. The gist of the allegations as culled from the FIR reads as
under:-
“To, SHO, Police Station Sadar Dadri, Jai Hind, Today on
05.02.2023, I, Virender Singh SI 387/HSNCB alongwith EHC
Narender 52/Narnaul, Constable Narender 2666/Gurugram with vehicle
bearing Reg No HR 05GV 1692 driver EASI Kuldeep 1079/BWN,
present at village Charkhi Bus stand where a secret information is
received through secret informer that a person named Kaliya wearing
cream color pant blue color upper with black color topi on head
belonging to village Paintawas Kalan District Charkhi Dadri is standing
with intoxicant substance Charas, near Lord Shiva Temple outside the
village Paintawas Kalan District Charkhi Ddari. If immediate raid is
conducted he can be caught with the contraband. the information is
reliable, a notice u/s 42 of NDPS is prepared for intimating senior
officials of Police Station Sadar Dadri, and also to be entered in the
roznamcha is sent through driver EASI Kuldeep 1079/BWN, thereafter
I alongwith my team members reached near Lord Shiva Temple outside
the village Paintawas Kalan District Charkhi Ddari, where after seeing
police party a Young Person resembling with the disclosed identity by
the secret informer rans towards foresty (Bani), with the help of my
team members he was controlled and after inquiry he disclosed his
name as Jagbir@ Kaliya s/o sh Omprakash R/O village Paintawas
Kalan District Charkhi Dadri. After giving him my introduction on the
suspicion of intoxicant substance a Notice u/s 50 of NDPS Act is given
to him i.e You are Jagbir@ Kaliya s/o sh Omprakash R/O village
Paintawas Kalan District Charkhi Dadri is under suspicion of
possessing intoxicant substance for which I have to search you and you
have a statutory right to be searched before any Magistrate or Gazetted
officer by calling him at the spot or by taking you before the Magistrate
or Gazetted officer for that you have to give your consent in reply to the
notice, upon which Mushami Jagbir @ Kaliya replied that I am
uneducated and I can only sign where it is needed and also told me that
prepare my consenting reply by your own, he gives his consent for
search to conducted before Magistrate or Gazetted officer by calling
him at the spot. Upon which a consenting reply is prepared and signed
by Jagbir @ Kaliya alongwith witnesses. Thereafter receiving reply
from the Jagbir @ Kaliya I contacted to Civil Gazetted Officer Shri
Surajbhan Singh SDO LWS Dadri through my mobile no 9812454251
on his mobile no 9467074282 and informed him about the whole
situation and requested him to come on at the place of occurrence. At
sharp 6 pm the Civil Gazetted Officer Shri Surajbhan Singh SDO LWS
Dadri reached at the place of occurrence and all the information is
given to him. Thereafter Civil Gazetted Officer Shri Surajbhan Singh
SDO LWS Dadri searched me as per rules/provisions and nothing
intoxicating/objectionable thing is recovered from me, for that a
recovery memo is prepared and then Shri Surajbhan Singh SDO LWS
Dadri gives me instruction to search the mushami Jagbir @ Kaliya,
search of Jagbir @ Kaliya is conducted as per order given to me by Shri
Surajbhan Singh SDO LWS Dadri. There is lot of movements of the2 of 11
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people at the spot, many of them is informed about the situation but all
of them refused to become witnesses by expressing there genuine
issues. Search of Jagbir @ Kaliya is conducted by me and during the
search a green color polythene is recovered in the hand of Jagbir @
Kaliya which was opened and checked by me and intoxicating
substance is recovered which I believed to be CHARAS. The recovered
intoxicating substance Charas is weighed by electronic kanta, the net
quantity of the recovered intoxicating substance Charas is 1.250 kg,
with polythene its weight is 1.272 kg. The recovered substance is seized
and separate Parcel is prepared on which 3 seals of monogram VS is
affixed on the parcel (Palnda) and then after preparing sample seal it
was handed over to Constable Narender 2666/Gurugram and also the
Civil Gazetted Officer Shri Surajbhan Singh SDO LWS Dadri affixed
his seal of monogram DS and sample seal was also prepared and the
seal is kept with itself by the Civil Gazetted Officer Shri Surajbhan
Singh SDO LWS Dadri. The recovered intoxicating substance Charas is
seized and recovery memo is prepared and seized substance is taken
into the possession of police. Recovery memo is attested by the Shri
Surajbhan Singh SDO LWS Dadri and he left the place of occurrence at
sharp 6.40 pm for some official works. Mushami Jagbir @ Kaliya by
keeping 1.250 kg Charas has committed offence u/s 20 B (II)(C)/61/85
OF NDPS Act. During this time EASI Kuldeep 1079/BWN reaches at
the spot who was earlier went to enter ruqqa( notice u/s 42) in the
Police Station Sadar Dadri and the nakal report is handover to me by
him and tehrir prepared is also sent through him to the Police Station
Sadar Dadri and after registering inform me the FIR No and also by
preparing special report inform the senior officials and send any
competent Investigating Officer at the place of occurrence for further
investigation. I am busy at the spot. Special report of the case will be
sent to senior officials as well as to the Illaqa Magistrate through Email
and for Investigating the case ASI Rakesh HSNCB Unit Rohtak is
informed telephonically to reach at the place of occurrence. NOTE
present case is registered in the presence of HC Sandeep 570/Dadri….”
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
PETITIOER
4. Learned counsel for the petitioner, in asking for the relief of
regular bail, submits that the petitioner has clean antecedent, and he has
been falsely implicated in the present FIR.
5. She further submits that the statutory compliance of Sections
42 and 50 of the NDPS Act, has not been made, therefore, the entire
recovery is vitiated.
6. She mainly placed reliance upon the days of incarceration,
i.e. more than 1 year and 7 months, as today, and submits that the trial is
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not progressing in its right directions, rather is progressing at a snails
pace, therefore, the petitioner may be enlarged on regular bail.
7. She finally submits that the recovery effected from the
present petitioner is marginally above the commercial quantity.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
8. Per contra, the learned State counsel vociferously opposed
the asked for relief, and submits that since the recovery effected from the
present petitioner falls within the ambit of commercial quantity,
therefore, the rigor of Section 37 NDPS Act, comes into the way of
petitioner to seek the relief of regular bail.
9. Today, he has filed a status report, dated 07.09.2024, by way
of an affidavit of Sh. Dheeraj Kumar, DSP (HQ), Charkhi Dadri, and also
a custody certificate qua the present petitioner, which are ordered to be
taken on record, with copies thereof already supplied to learned counsel
for the petitioner.
10. A perusal of the same reveals that the petitioner has suffered
incarceration of 01 year, 07 months and 02 days as on today and he is not
involved in any other criminal case.
11. He further submits that out of the total 18 witnesses as cited
by the prosecution, only one witness has been examined so far.
ANALYSIS
12. 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.
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13. “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.
14. 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.
15. 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 to be withheld as a
punishment. In two other cases which, significantly, are5 of 11
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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 of6 of 11
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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.”
16. 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.
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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 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 prospective8 of 11
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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.”
17. 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) of the NDPS Act.”
18. 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 parental9 of 11
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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.
19. This Court has examined the instant petition on the
touchstone of the hereinabove extracted settled and legal principle(s) of
law and is of the considered opinion that the instant petition is amenable
for being allowed.
20. The reason for forming the above inference emanates from
the factum that:- (i) the custody certificate (supra) reveals that the
petitioner has undergone actual custody of 01 year 07 months and 02
days as on today; (ii) the petitioner has clean antecedent; (iii) the
recovery of contraband effected from the present petitioner is marginally
above the commercial quantity; (iv) there is no likelihood of the trial
concluding anytime soon, as the trial is moving at snail’s pace, only 01
prosecution witness has been examined out of total 18 prosecution
witnesses; (v) no fruitful purpose would be served by keeping the
petitioner behind the bars; (vi) all the issues which have been raised by
learned counsel for the petitioner, are required to be adjudicated by the
learned trial court concerned, at an appropriate stage of the trial,
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therefore, this Court refrains to make any observation on those issues.
FINAL ORDER
21. 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.
22. 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.
23. 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.
24. All pending application(s) stand disposed of accordingly.
(KULDEEP TIWARI)
September 10, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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