Punjab-Haryana High Court
Jagdish Kumar Alias Jaggi vs State Of Punjab on 3 October, 2024
Neutral Citation No:=2024:PHHC:131981
CRM-M-9338-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(227) CRM-M-9338-2024
Date of Decision : 03.10.2024
Jagdish Kumar @ Jaggi ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Liaqat Ali, Advocate
for the petitioner.
Mr. Sahil R. Bakshi, AAG, Punjab.
****
KULDEEP TIWARI, J.(Oral)
1. Through the instant petition filed under Section 439 of Cr.P.C.,
the petitioner prays for grant of regular bail in case FIR No.22 dated
27.01.2022 (Annexure P-1), under Sections 22/61/85 of the Narcotic Drugs
and Psychotropic Substances Act, 1985, registered at Police Station Model
Town, District Hoshiarpur.
2. The petitioner, who has clean antecedents, has approached this
Court, seeking grant of regular bail in case FIR (supra). The case of the
prosecution as per the FIR (supra) is that :-
“On 27.01.2022, police party headed by ASI Buta Singh
alongwith other police officials i.e. ASI Sukhdev Singh
668/Hpr., CT Jaswant Singh 1096/Hpr., CT Rajat Sharma
1234/Hpr., were present at CIA Staff, Hoshiarpur, then
ASI Mahesh Chander 350/Hpr, Constable Jaspal Singh
448/Hpur, CT Sumit Kumar 1160/Hpr, had apprehended
one person alongwith mortorcycle PB-07-AB-0157 near1 of 11
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Bhangi Choe on the Pucca Road, new Shashtri Nagar,
near Lajwanti Stadium, Hoshiarpur, who has disclosed
his name as Jagdish Kumar son of Shingara Ram,
resident of Backside Mahavir Factory, Sunder Nagar
Purhiran, Police Station Model Town, Hoshiarpur, who
was suspected to be having some intoxicants articles and
Investigating Officer be sent. Then Investigating Officer
reached at Bhangi Choe Shashtri Nagar and after
completing necessary formalities got recovered 800
capsules Blue coloured. Accordingly case was registered
against the accused under Section 22-61-85 of ND&PS
Act and accused was arrested.”
In nut shell, the case of the prosecution is that a recovery of
483.2 grams of Tramadol Hydrocloride was effected from the present
petitioner and he was arrested on 16.02.2023.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. Learned counsel for the petitioner submits that the petitioner has
suffered incarceration of more than 01 year and 08 months, as on date, and
asking for the relief (supra), submits that till date only 03 witnesses, out of
total 10 prosecution witnesses has been examined, as cited by the
prosecution. He further submits that non-compliance of Section 50 of the
NDPS Act, has been made, which goes to the root of the matter. Finally, he
submits that the petitioner is not involved in any other criminal case, or under
the NDPS Act, and has clean antecedents, and has been falsely implicated in
the instant case.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. On the other hand, learned State counsel on instructions
imparted to him by ASI Hans Raj, has opposed the grant of regular bail to the
petitioner, on the ground that since the recovery effected in the instant case,
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falls under the ambit of commercial quantity, therefore, the bar under Section
37 of the NDPS Act, operates and it was the petitioner, who has to discharge
the onus, while establishing prima facie that no case is made out against the
petitioner.
5. Learned State counsel has also placed on record the custody
certificate dated 01.10.2024, qua the petitioner, in the Court today, the same
is taken on record. The custody certificate reflects that the petitioner has
undergone more than 01 year and 08 months in custody, as on today.
ANALYSIS
6. 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.
7. “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.
8. 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
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jurisprudence, which is “the presumption of innocence”, besides the gravity
of offence(s) involved.
9. 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, 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 lay4 of 11
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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.”
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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.”
10. 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
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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 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
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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.”
11. 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:-
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“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.”
12. 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
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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, howsoever stringent the penal law may be.”
DECISION
13. This Court, has examined the instant petition on the touchstone
of the hereinabove extracted settled legal principle(s) of law and the rival
submissions made by the learned counsel for the parties concerned, and is of
the considered opinion that the instant petition is amenable to be allowed for
the reasons extracted hereinbelow :-
i) that the petitioner has suffered incarceration of more
than 01 year and 08 months, as on today;
ii) that the petitioner is not involved in any other criminal
case and has clean antecedents;
iii) that the trial in the instant case, is still at the initial
stage, and conclusion of the same will take long time.
14. In view of the above, this Court deems it fit and appropriate to
enlarge the petitioner on regular bail. Accordingly, the instant petition is
allowed. The petitioner is ordered to be released on bail on furnishing of bail
bonds and surety bonds to the satisfaction of Chief Judicial Magistrate/trial
Court/Duty Magistrate, concerned.
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15. However, anything observed here-in-above shall have no effect
on the merits of the case and is meant for deciding the present petition only.
(KULDEEP TIWARI)
JUDGE
October 03, 2024
Manpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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