Punjab-Haryana High Court
Kuljit Singh Alias Kuljit Singh Alias … vs State Of Punjab on 19 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
211 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-40440-2024
Date of Decision: September 19, 2024
KULJIT SINGH ALIAS KULJIT SINGH ALIAS KOLI
....Petitioner(s)
VERSUS
STATE OF PUNJAB
....Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Raman Kumar, Advocate for the petitioner.
Mr. Jaspal Singh Guru, AAG, Punjab.
****
SANDEEP MOUDGIL, J.(ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 439 Cr.P.C. has been
invoked seeking the concession of regular bail for the petitioner in FIR No.256
dated 15.07.2019, under Sections 22, 61, 85 of NDPS Act, 1985 registered at
Police Station Phillaur, District Jalandhar Rural.
2. Prosecution story set up in the present case as per the version in
the FIR read as under :-
‘Senior Officer, P.S. Phillor “Jai Hind” today along with ASI HC
Paramjit Singh 495/Jalandhar, PHG Jeevan Lal 28100 on
patrolling duty to search for suspected persons from Phillor to
Ganna village, Bhaini etc. When the police party reached Y Point
Talwan chowk Phillaur Pass, a haircut young man came on foot
towards the side of Ganna village, who immediately started
turning back after seeing the police party. Who threw the polothin
bag, he was holding in his left hand on the side of the road. ASI
controlled him with the help of colleagues and asked for his name
SANGEETA and address. Who said that his name is Kuljit Singh @ Koli son of
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CRM-M-40440-2024 2Jagjit Singh, resident of Khursaidpur, police station, Sidhwan Bet
at present resident of Rajapura police station, Laiwal district,
Ludhiana. On which saw the bag thrown on the roadside in which
two drug injections marked Avil fell out of the bag. On which the
offense is found to be made u/s 22-61-85 NDPS ACT.’
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that it is only a
recovery of two Avil injections as per the version narrated in the FIR dated
15.07.2019 (Annexure P-1) whereas before the trial Court at the time of
arguments on the second application seeking regular bail, the prosecution case
was set up reflecting recovery of 11 injections of mark LEEGESIC 2 ml each
containing Bupernorphine Hydrochloride and it does corroborate the recovery
qua two injections of Avil.
Attention of this Court has been drawn to the challan as framed
under Sections 173 Cr.P.C. dated 16.12.2019 (Annexure P-3) wherein, also as
per the narration of the FIR, recorded recovery shown is of two Avil injections
only but while concluding the report, simplicitor it has been mentioned as 11
injections of make Avil and 11 injections of make Leegesic as recovered and
after preparing separate parcels of the recovered injections, it was taken into
possession.
There is serious contradiction in the case of the prosecution at
three stages till now, which raises a debatable issue before the trial Court and
the prosecution has to establish by leading evidence, its case, in order to
remove the aforesaid discrepancies.
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CRM-M-40440-2024 3
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 almost 11 months 09 days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of concession of regular bail asserting that
petitioner is involved in other identical cases, but perusal of the custody
certificate would depict that the petitioner is on production warrant in three
cases out of which one is under the Excise Act and the other two under the
NDPS Act registered at Police Station, Laddowal.
4. Analysis
This Court after giving a thoughtful consideration to the
submissions as made, by the counsel for both the parties and in consonance
with the submissions made on behalf of the petitioner, that according to the
instant FIR recovery effected is only of two injections of Avil whereas in the
challan subsequently prepared on 16.12.2019 (Annexure P-3) 11 injections of
make Avil and 11 injections of make Leegesic have been shown to be
recovered. Such recovery raises a doubt in the prosecution and even 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 05.11.2023; charges stand framed on 13.12.2023,
there are total 08 prosecution witnesses, out of which only 02 prosecution
witness have been examined, which is sufficient for this Court to infer that the
conclusion of trial is likely to take considerable time and detaining the
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petitioner behind the bars for an indefinite period would solve no purpose.
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CRM-M-40440-2024 4
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 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
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accused person during investigations, a strong case should be
integrity of this document
CRM-M-40440-2024 5made 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
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,
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CRM-M-40440-2024 6back 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
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
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alias Rock vs. State of Punjab” decided on 02.03.2023, wherein, while
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CRM-M-40440-2024 7
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
petitioner is hereby directed to be released on regular bail under 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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