Punjab-Haryana High Court
Prem Singh vs State Of Haryana on 28 August, 2024
Neutral Citation No:=2024:PHHC:110807
CRM-M-16085-2023 & CRM-M-31941-2023
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
212
Date of decision: 28.08.2024
1. CRM-M-16085-2023
PREM SINGH ....Petitioner
Versus
STATE OF HARYANA ...Respondent
2. CRM-M-31941-2023
CHARANJIT SINGH ....Petitioner
Versus
STATE OF HARYANA ...Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Ashok Giri, Advocate
for the petitioner CRM-M-16085-2023.
Ms. Himani Anand, Advocate
for the petitioner in CRM-M-31941-2023.
Mr. Bhupender Singh, DAG, Haryana.
KULDEEP TIWARI. J.(Oral)
1. In both the petitions, the petitioners craves for indulgence of this
Court for they being enlarged on regular bail, in case FIR No.278 dated
24.04.2022 under Sections 15 of NDPS Act, 1985 (Sections 29/27-A of NDPS
Act, added later on), registered at Police Station Thanesar Sadar, District
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Kurukshetra, therefore, being amenable by common decision, same are taken up
together.
ALLEGATIONS AGAINST THE PETITIONER
2. The allegations, as levelled against the present petitioners in the instant
FIR, reads as under:-
“Today on 24.04.2022, I SI Gulab Singh 202/A, ESI Ramesh Kumar 160,
HC Deepak Kumar 1069, HC Gurbax Singh 1090, C-1 Mahesh Kumar 55, were on
private car bearing registration number HR-05-AW-5050 make Creata owned by
HC Gurbax Singh and were present at Pipli Chowk, Pipli in connection with
patrolling. Secret informer came to me SI and informed that Prem Singh s/o Swaran
Singh r/o Village Bajrood, District Ropar Punjab does work of driving Canter
bearing registration number PB-65-BB-2751 which is owned by him. Abovesaid has
keep Charanjit Singh s/o Baldev Singh r/o Village Majra, Tehsil Nalagarh District
Solan Himachal Pradesh in his Canter as cleaner. Abovesaid both whenever go to
Madhya Pradesh, Rajasthan and Maharashtra etc. by loading goods in aforesaid
Canter, they bring poppy husk in heavy quantity by purchasing it in lower price by
loading in said canter. Abovesaid both alongwith their other friends sell aforesaid
Poppy Husk in Punjab and Himachal Pradesh on a high price. Abovesaid Prem
Singh and Charanjit Singh have been doing abovesaid business for many months
continuously. Abovesaid Prem Singh and Charanjit Singh have started from
Madhya Pradesh by loading goods and Poppy Husk in heavy quantity in abovesaid
canter. After about one hour from now, they will approach towards Punjab from
Karnal via Pipli in abovesaid vehicle. Abovesaid Canter is of red colour and having
a tarpaulin of black colour over it. If naka is laid at GT road, Partapgarh turn now,
then abovesaid Prem Singh and Charanjit Singh can be apprehended alongwith
abovesaid Canter bearing registration number PB-65-BB-2751 alongwith Poppy
Husk in heavy quantity. Information seemed true and reliable therefore at about
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12:30 PM, notice u/s 42 NDPS Act was prepared separately and sent to Sh.RamDutt HPS/DSP Kurukshetra District Kurukshetra through C-1 Mahesh Kumar 55
with a request to reach at the spot and for information. On the basis of aforesaid
secret information, prima facie offence u/s 15/61/85 of NDPS Act is made out. Ruqa
is being sent to police station Sadar Thanesar through ESI Ramesh Kumar 160 for
registration of FIR. FIR number be informed after its registration. Special reports
be sent to Senior officials. Another investigating officer be sent at the spot for
further investigation. I SI alongwith other officials, am approaching to Sarsawati
Bridge, Partapgarh Turn GT Pipli. Today at Pipli chowk Kurukshetra, CIA-2
Kurukshetra Dt.24.4.2022 at 12.40 PM.”
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
3. The learned counsel for the petitioners, in his asking for the
hereinabove extracted relief, has made the following submissions:-
(i) Petitioners have been falsely implicated in the present case;
(ii) The main thrust is upon the delay in conclusion of trial, as both
the petitioners have suffered incarceration of more than 02 years, and
03 months, as on today;
(iii) Both the petitioners have clean antecedents, and has been
involved in the instant FIR, with the allegations of carrying 515 kg of
poppy husk, which undoubtedly fall within the ambit of commercial
quantity;
(iv) Out of the total 32 prosecution witnesses cited in the final report,
only 01 witness has been examined till date.
(v) The final report under Section 173 Cr.P.C., had already been
filed on 13.04.2023.
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SUBMISSIONS OF THE LEARNED STATE COUNSEL
4. Per contra, the learned State counsel, opposed the grant of regular bail
to the present petitioners, as the recovery effected from the present petitioners is of
commercial quantity, as prescribed under the schedule attached with the NDPS Act,
as both the petitioners were carrying 515 kg of poppy husk. Learned State counsel
further informs this Court that in the instant FIR, total 06 persons have been arrayed
as accused, whereas, 04 persons who were not caught on the spot have already been
granted the relief of bail. Learned State counsel has placed on record the custody
certificates qua the petitioners, as issued by the Deputy Superintendent, District
Prison (Kurukshetra), Haryana. The same are taken on record. A perusal of the
custody certificates reveals that both the petitioners have suffered incarceration of 02
years, 03 months and 22 days, as on today. A perusal of the custody certificate
further reveals that both the petitioners are not involved in any other criminal case.
Learned State counsel on instructions, imparted to him by the official respondent,
submits that after conclusion of the investigation, the final report under Section 173
Cr.P.C., had already been filed on 13.04.2023. Learned State counsel further
submits that out of the total 32 prosecution witnesses cited in the final report, only
01 witness has been examined till date.
ANALYSIS
5. 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.
6. “Bail is the Rule and Jail is an Exception”. This basic principle of
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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.
7. 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.
8. 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 19315 of 12
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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 :
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“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.”
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.”
9. 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 the7 of 12
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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. 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
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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.”
10. 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
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condition stands complied with. So far as the 2nd condition re: formation of opinion asto 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.”
11. 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 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
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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.
12. This Court has examined the instant petitions on the touchstone of the
hereinabove extracted settled legal principle(s) of law and is of the considered
opinion that the instant petitions are amenable for being allowed.
13. The reason for forming the above inference emanates from the factum
that:- (i) The petitioners are the first time offenders, and they have suffered
incarceration of 02 years, 03 months and 22 days, as on today; (ii) Out of the total 32
prosecution witnesses cited in the final report, only 01 witness has been examined
till date. (iii) The final report under Section 173 Cr.P.C., had already been filed on
13.04.2023, (iv) No fruitful purpose would be served by keeping the petitioners
behind the bars, (v) Trial is not likely to conclude anytime soon.
FINAL ORDER
14. Considering the hereinabove made discussion, this Court deems it fit
and appropriate to grant the concession of regular bail to the petitioners. Therefore,
without commenting upon the merits and circumstances of the present cases, the
present petitions are allowed. The petitioners are ordered to be released on bail on
furnishing of bail bonds and surety bonds to the satisfaction of concerned Chief
Judicial Magistrate/trial Court/Duty Magistrate.
15. However, anything observed here-in-above shall have no effect on
the merits of the trial, and is only meant for deciding the present petitions.
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16. However, it is clarified that if in future, the petitioners are 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.
(KULDEEP TIWARI)
28.08.2024 JUDGE
amandeep
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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