Punjab-Haryana High Court
Jagtar Singh Alias Amit vs State Of Punjab on 19 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
210
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-37142-2024
Date of Decision: September 19, 2024
JAGTAR SINGH ALIAS AMIT
....Petitioner(s)
VERSUS
STATE OF PUNJAB
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Paras Khindri, Advocate
for the petitioner.
Mr. Jaspal Singh Guru, AAG, Punjab.
****
SANDEEP MOUDGIL, J.(ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 483 of Bhartiya
Nagrik Suraksha Sanhita, 2023 read with Section 439 Cr.P.C. has been
invoked seeking the concession of regular bail for the petitioner in FIR No.208
dated 06.11.2022, under Section 22C of NDPS Act, 1985 (hereinafter referred
to as ‘the Act’) registered at Police Station Dinanagar, District Gurdaspur
(Annexure P-1).
2. Prosecution story set up in the present case as per the version in
the FIR read as under :-
‘SHO P.S Dinanagar jai hind Today I S.I along with ASI Naresh
SANGEETA Kumar 562/GUR, S/CT Raman Kumar 1140 CT Bhupinder Singh
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CRM-M-37142-2024 2871/Gur were Patrolling in Government vehicle whose driver is ASI
Nishan Singh 669 were checking vehicles and present at Lighta Wala
Chownk Dinanagar. That one Motorcycle bearing number PB 06 AG
1429 marked splendor was seen coming from Gurdaspur side and three
Cutsurd young persons were on the motorcycle. I S.I indicated them with
the torch to stop then the pillion driver suddenly applied the break of the
motorcycle and tried to turn back the motorcycle along with his
companions. Then I S.I with the help of other officials apprehended them
and asked for their whereabouts then the pillion rider of the motorcycle
told his name as Jagtar Singh @amit S/O Darshan Singh resident of
Kothe Majithi P.S Behrampur and person sitting next to him told his
name as Goldy S/O Ram Kumar resident of Islamabad Gurdaspur P.S
city Gurdaspur and the person who is sitting at the third number on the
motorcycle told his name as Akashdeep @bhatti S/O Jaspal R/o Tung
P.S Sadar Gurdaspur And I S.I on the basis of suspicion I told them my
name, rank and deployment and given them the notice under section 50
of NDPS act one by one and asked them that I have a doubt you or your
motorcycle might be possessing some intoxicant substance I want to
search you and your motorcycle but you have the legal right that you can
get you and your motorcycle be searched in the presence of any
magistrate or Gazetted officer who can be called at the spot. Then they
said that we believe you and you can search us and our motorcycle and
the separate consent memo has been prepared and before searching we
tried to join the Public witness but no one has joined. Then I S.I along
with other companions first check the tool box of motorcycle and found
one polythene with intoxicant tablets without any mark which comes to
530 intoxicant tablets in total when Counted. Then it was weighed on the
electronic weighing machine its weight come to 114 gm of intoxicant
tablets. and then the recovers tablets were put to the same polythene and
then put in a plastic Box and parcel was prepared and it was stamped
with my DS/1 stamp and Sealed It was taken in possession by preparing
the separate recovery memo as a Proof. Sample of this has been
prepared Seprately The stamp after using handed over to ASI Naresh
Kumar 562/Gur. Form 29-M will be completed in the presence of hon’ble
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CRM-M-37142-2024 3judge. That by keeping the possession of intoxicant tablets the above said
Jagtar Singh @amit, Goldy and Akashdeep has not produced any chit or
licence for the same. because the accused Jagtar Singh @amit son of
Darshan Singh R/O Kothe Majithi P.s Behrampur and the person sitting
behind him namely Goldy S/o Raj Kumar R/O Islamabad Gurdaspur P.S
City Gurdaspur and person sitting next to him on third number namely
Akashdeep @bhatti S/O Jaspal Singh R/o Tung P.S Gurdaspur by
keeping the possession of 530 intoxicant gm tablet i.e is 114 committed
the offence under section 22 (C) has 61- 85 of NDPS act. the Ruqa has
been sent by hand through CT Bhupinder Singh 871/gur to the police
station. The case number ne informed after registration of the Case.
Special reports be prepared sent officials to Ilaqa magistrate and other
Control room has been informed through wireless. I S.I is busy in
inquiring at the spot sd/ Daljit Singh S.I, P. S Dinanagar Dated 6.11.22.’
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner submits that the petitioner
has been falsely implicated in the present case. It is asserted that the
recovery in the present case is of 530 tablets containing salt/Alprazolam
weighing 104.94 mg, from the tool box of motorcycle. It has further been
asserted that it is highly improbable that a person carrying the contraband,
would carry the same in a tool box of motorcycle. It is contended that the
recovery in the present case is marginally above the commercial quantity
and further the weight of the polythene is including while weighing the
contraband.
The assertion is that there is a complete violation of Sections 42
and 50 of the Act.
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CRM-M-37142-2024 4
Reference has been made to the various orders passed by the
Co-ordinate Benches of this Court i.e. order dated 02.08.2021 passed in
CRM-M-4408-2021 titled Banti Kaur @ Bhanti Kaur Vs. State of Punjab,
Binder Kaur @ Goga Vs. State of Punjab reported as 2021(3) RCR
(Criminal) 360, Jaskaran Singh @ Jassu Vs. State of Punjab, reported as
2021(2) RCR (Criminal) 837, order dated 28.02.2020 passed in CRM-M-
8026-2020 titled as Lakhwinder Singh @ Lakha Vs. State of Punjab.
On behalf of the State
Learned State counsel has filed the custody certificate of the
petitioner, which is taken on record. He prays for dismissal of the present
petition stating that the petitioner is involved in other cases also, meaning
thereby, he is a habitual offender
Learned State counsel has opposed the prayer made in the
present petition but could not dispute the fact that the contraband is alleged
to have been carried in a tool box of motorcycle. He, however, submits that
the weight of the total recovered contraband works out to 104.94 grams of
‘Alprazolam’ which would fall within the category of commercial quantity.
4. Analysis
Admittedly, the recovery was effected from a tool box of
motorcycle, the same made the case of the prosecution doubtful and it was
highly unlikely that a person who is committing an offence with respect to
the contraband, would carry the same in a tool box of motorcycle.
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CRM-M-37142-2024 5
From the above case it can be culled out that the petitioner has
already suffered sufficient period in custody i.e. 01 year 10 months 09 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 24.04.2023; charges are yet to be framed,
there are total 10 prosecution witnesses, out of which none has been examined,
which is sufficient for this Court to infer that the conclusion of trial is likely to
take considerable time and 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 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 ourSANGEETA
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CRM-M-37142-2024 6
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.
5. To put it shortly, a humane attitude is required to be adopted
by a judge, while dealing with an application for remanding a
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CRM-M-37142-2024 7suspect 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
basic and fundamental principle of law that right to speedy trial is a part of
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CRM-M-37142-2024 8
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 the 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 would land the petitioner in a situation of denial of
concession of bail.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
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petitioner is hereby directed to be released on regular bail under 483 of
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CRM-M-37142-2024 9Bhartiya Nagrik Suraksha Sanhita, 2023 read with Section 439 Cr.P.C. on
his furnishing bail and surety bonds to the satisfaction of the trial Court/Duty
Magistrate, concerned.
In the afore-said terms, the present petition is hereby allowed.
However, it is made clear that anything stated hereinabove shall
not be construed as an expression of opinion on the merits of the case.
(SANDEEP MOUDGIL)
JUDGE
19.09.2024
Sangeeta
Whether reasoned/speaking: Yes/No
Whether reportable: Yes/No
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