Punjab-Haryana High Court
Baljinder Singh @ Kalu @ Don vs State Of Punjab on 7 January, 2025
Neutral Citation No:=2025:PHHC:001306
CRM-M-63571-2024 (O&M) 1
207 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-63571-2024 (O&M)
Date of decision: 07.01.2025
Baljinder Singh @ Kalu @ Don
...Petitioner
versus
State of Punjab
...Respondent
S
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Barjinder Singh, Advocate
for the petitioner.
Mr. Sandeep Kumar, DAG, Punjab.
***
HARPREET SINGH BRAR J. (ORAL)
1. This is the third petition under Section 439 of Cr.P.C. for grant of
regular bail in case bearing FIR No. 125 dated 01.07.2019 registered under
Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at
Police Station Shahkot, District Jalandhar Rural.
2. On 01.07.2019, the police party was patrolling the area of Kotli
Gajran in a private vehicle when they saw the petitioner walking on foot,
carrying a plastic bag in his right hand. He was apprehended on suspicion and
his consent to search him was obtained. Consequently, 100 strips of Clovidol-
100, with 10 tablets in each strip, were recovered. Subsequently, a ruka was
sent and FIR (supra) was registered against the petitioner. On chemical
analysis, it was found that the recovered contraband contained 409 gms of
Tramadol.
3. Learned counsel for the petitioner inter alia contends that the
present petition is the third attempt by the petitioner to seek grant of regular
bail and has been filed on account of delay in conclusion of trial. The first and
second petitions were dismissed as withdrawn vide orders dated 05.01.2024
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and 18.09.2024, respectively. He further contends that the police party has
failed to comply with Sections 42, 50, 52-A, 57 of the NDPS Act, which are
mandatory in nature, thus vitiating the entire search. Curiously, the documents
which were prepared on the spot of the alleged occurrence i.e. recovery memo,
site plan etc, bear the details of the FIR, which was registered later in time.
Finally, the petitioner has already undergone custody of 1 year 5 months and 17
days. The delay in conclusion of trial cannot be attributed to the petitioner and
as such, he deserves the concession of bail. Reliance in this regard is placed on
the judgments of Hon’ble Supreme Court passed in Md. Aliul Islam @ Aliul
Islam @ Alius Vs. The State of West Bengal, SLP (CRL) No. 000736/2024,
Debrata Mondal Vs. State of West Bengal SLP(Crl.) No. 14970-2023,
Santarul Islam @ Santa Vs. The State of West Bengal SLP(Crl.) No.
13169/2023, Indrajit Mondal @ Piglu Vs. The State of West Bengal
SLP(Crl.) No. 8512/2023, Narjul Islam @ Najbul Hoque Vs. The State of
West Bengal SLP(Crl.) No. 14172/2023, Subhashri Das @ Rana @
Subhoshree Vs. The State of West Bengal SLP(Crl.) No. 15284/2023, Mithun
Sk. & Anr. Vs. The State of West Bengal SLP (Crl) No.016598/2023, SK.
Nasiruddin @ Nasirddin SK. Vs. State of West Bengal SLP (Crl)
No.003402/2024 , Indadul Shah Vs. The State of West Bengal SLP(Crl.) No.
12670/2023, Ripon Seikh & Ors. Vs. State of West Bengal SLP(Crl.) No.
16663/2023, Moidul Sarkar Vs. The State of West Bengal SLP(Crl).No.
15668/ 2023 , Saniya Bibi @ Soniya Bibi Vs. The State of West Bengal
SLP(Crl.) No. 2354/2024, Saddam Hossain Vs. State of West Bengal
SLP(Crl.) No. 15496/2023, Bijon SK @ Golam Murselim Vs. The State of
West Bengal SLP (Crl.) No. 6046/2024 and Chitta Biswas @ Subhas Vs. The
State of West Bengal SLP(Crl.) No. 8823/2019.
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4. Further, a two Judge bench of the Hon’ble Supreme Court in
Mohd. Muslim @ Hussain vs. State (NCT of Delhi) 2023 AIR SC 1648 has
held that the concept of fairness enshrined under Article 21 of the Constitution
of India would trump the bar on granting bail in cases involving commercial
quantity of contraband, as stipulated by Section 37 of the NDPS Act. Speaking
through Justice S. Ravindra Bhat, has opined as follows:
“20. The standard to be considered therefore, is one, where the court
would look at the material in a broad manner, and reasonably see
whether the accused’s guilt may be proved. The judgments of this court
have, therefore, emphasized that the satisfaction which courts are
expected to record, i.e., that the accused may not be guilty, is only prima
facie, based on a reasonable reading, which does not call for meticulous
examination of the materials collected during investigation (as held in
Union of India v. Rattan Malik). Grant of bail on ground of undue
delay in trial, cannot be said to be fettered by Section 37 of the Act,
given the imperative of Section 436A which is applicable to offences
under the NDPS Act too (ref. Satender Kumar Antil supra). Having
regard to these factors the court is of the opinion that in the facts of this
case, the appellant deserves to be enlarged on bail.
21. Before parting, it would be important to reflect that laws which
impose stringent conditions for grant of bail, may be necessary in
public interest; yet, if trials are not concluded in time, the injustice
wrecked on the individual is immeasurable. Jails are overcrowded and
their living conditions, more often than not, appalling.” (emphasis
added)
5. Per contra, learned State counsel files the custody certificate,
which is taken on record, and opposes the prayer made by learned counsel for
the petitioner on the ground that the petitioner is a habitual offender and even
in the FIR(supra) serious and specific allegations have been leveled against the
petitioner. However, he could not controvert the fact that till date only 3
prosecution witnesses have been examined and that the petitioner is on bail in
the other case registered against him i.e. FIR bearing No. 50 dated 08.04.2019
registered under Section 21 of the NDPS Act at Police Station Dharamkot,
District Moga.
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6. Having heard the learned counsel for the parties and after perusing
the record, it transpires that petitioner is behind the bars for almost 1 year 6
months. Moreover, out of a total of 09 prosecution witnesses, only 03 have
been examined so far. It is established that culpability, if any, would be
determined on conclusion of the trial.
7. The Hon’ble Supreme Court has repeatedly reiterated that the right
to speedy trial as enshrined in Article 21 of the Constitution of India, is a
fundamental concept in criminal jurisprudence and a sine qua non for proper
administration of justice. It must be noted that ‘trial’ herein encompasses
investigation, inquiry, trial, appeal, revision and retrial etc. i.e. everything
commencing with the accusation to the final verdict of the last Court. Further
still, it is trite law that no person can be deprived of his liberty except through a
procedure that is reasonable, fair and just as such deprivation would amount to
a direct violation of the fundamental right as enshrined in Article 21 of the
Constitution of India. Be that as it may, curtailment of personal liberty to some
extent cannot be avoided. However, if the period of deprivation pending trial
becomes excessively long, the fairness as guaranteed under Article 21 of the
Constitution of India would come into play and would also prevail over the
embargo created by Section 37 of the NDPS Act. A reference in this regard can
be made to the judgments rendered by the Hon’ble Supreme Court in Akhtari
Bi Vs. State of M.P., (2001) 4 SCC 355, Surinder Singh alias Shingara Singh
Vs. State of Punjab, (2005) SCC (Crl) 1674, P. Ramachandra Rao Vs. State
of Karnataka, (2002) 4 SCC 578, Babu Singh and others Vs. State of U.P.,
(1978) 1 SCC 579, Takht Singh and others Vs. State of M.P., (2001) 10 SCC
463; Special Leave to Appeal (Crl) No.2356 of 2010, Kushal Singh Vs. State
of U.P. (2JJ.) and Fazal Vs. State of Uttar Pradesh, (2012) 5 SCC 752.
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8. As far as the issue of the petitioner being a habitual offender is
concerned, the Hon’ble Supreme Court in Prabhakar Tewari vs. State of U.P.
2020 (11) SCC 648 and Maulana Mohd. Amir Rashadi vs. State of U.P. and
another (2012) 2 SCC 382, has categorically held that the grave and serious
allegations leveled against the accused or pendency of other cases against him
cannot be the only basis to refuse the prayer of bail.
9. In view of the above, the present petition is allowed and the petitioner is
ordered to be released on regular bail, subject to his furnishing bail
bonds/surety bonds to the satisfaction of concerned Court.
10. Nothing observed hereinabove shall be construed as expression of
opinion of this Court on merits of the case lest it may prejudice the trial. The
trial Court is also directed to proceed with the trial on its own merits.
(HARPREET SINGH BRAR)
07.01.2025 JUDGE
Ajay Goswami
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
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