Punjab-Haryana High Court
Ajay Singh vs State Of Punjab on 16 January, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:006225
CRM-M-28245-2024
1
221
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-28245-2024
DATE OF DECISION: 16.01.2025
AJAY SINGH ...PETITIONERS
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. G.S. Hayer, Advocate for the petitioner(s).
Mr. J.S. Rattu, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 439 of the Code of
Criminal Procedure, 1973 for grant of regular bail to the petitioner in
F.I.R No. 195 dated 01.09.2023 registered at Police Station Dharamkot,
District Moga under section 22,29 of Narcotic Drugs and Psychotropic
Substances Act, 1985.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
‘In charge officer, Police Station Dharamkot. Today, I the
Insp//SHO along with ASI Jagmohan Singh No. 93/Moga CT
Gurjeet Singh No. 1258 Moga, Phg Gopal Singh No. 23331 were
on official vehicle Scorpio bearing registration No. PB-29-L-9604
being driven by CT Jaskaran Singh No. 1029 Moga were going
from Udham Singh Chowk to village Jalalabad West in search of
bad elements when the police party reached at the T point
Jalalabad West at about 11:30 AM, one trimmed hair youngster
was seen coming from the opposite side who on seeing the police1 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225CRM-M-28245-2024
2party got perplexed and he pulled a black coloured polythene from
the right pocket of lower worn by him and he threw it on the road
and suddenly tried to turn back who was nabbed on suspicion with
the help of accompanying police officials and was enquired about
his identity who on enquiry disclosed his name as Baaj Singh son
of Chamkaur Singh son of Gora Singh, resident of Bhinder road,
village Jalalabad West and an attempt was made to join a public
witness but nobody was ready. Then I the Insp/SHO disclosed my
identity to above named Baaj Singh and informed him that I am
Insp/ Gurvinder Singh and I am posted as SHO Police Station
Dharamkot and I am in my uniform and I had worn my name plate,
and I disclosed my identity to him and I informed him that I Insp/
SHO had suspicion that there is some intoxicating substance in the
black coloured polythene which he threw from the right pocket of
lower worn by him and possession of same is illegal so his search
as well as search of black colour polythene Lifafa thrown by him is
to be conducted, but he has got legal right that he can get his
search be conducted by any Magistrate or Gazetted Officer who
can be called at the spot or he can be taken to them on which the
above named Baaj Singh replied that he had full faith in me the
Insp/SHO and I can conduct his search and also conduct the
search of black coloured polythene thrown by him on road on
which the Insp/SHO served a notice under section 50 of NDPS
ACT on above named Baaj Singh and notice was signed by Baaj
Singh in Punjabi language and was witnessed by Jagmohan Singh
No. 93 Moga and CT Gurjeet Singh No. 1258 Moga, then 1 the
Insp/SHO conducted the search of the black coloured polythene
thrown by Baaj Singh on road from which tablets of loose tablets
of light orange colour were recovered, which were found to be
total 50 tables, the recovered intoxicating tablets were put in the
same polythene and work converted into a bundle by putting them
in a cloth and bundle was stamped by me with my seal bearing
impression GS, sample stamp form was prepared separately, stamp
after use was given to Jagmohan Singh No. 93 Moga then the
recovered intoxicating tables in bundle along with sample stamp
form was taken into police possession. Recovery memo was signed2 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225CRM-M-28245-2024
3by Jagmohan Singh No. 93 Moga and CT Gurjeet Singh 1258
Moga, then I the Insp asked the above named Baaj Singh to show
me the pockets of lower worn by him, who pulled the pockets and
turned the pocket upside down and no cash, jewellery, mobile etc.
was recovered from Baaj Singh. Search memo was prepared
separately. Search memo was signed by above named Baaj Singh
in Punjabi language. Search memo was attested by ASI Jagmohan
Singh 93 Moga and CT Gurjeet Singh 1258 Moga, above named
Baaj Singh could not produce any license or permit for keeping the
intoxicating tables in his possession. Above named Baaj Singh had
committed an offence under section 22/61/85 of N.d.p.s Act by
keeping intoxicating tables in his possession, so ruqa is being sent
to police station through PHG Gopal Singh No. 23331 for
registration of case against Baaj Singh son of Chamkaur Singh son
of Jora Singh, resident of Bhinder Road village Jalalabad West,
District Moga, F.I.R No. should be informed after registration of
the case. Senior officers and PCR should be informed. Special
report should be issued. I the Insp/SHO along with accompanying
officials is present at the stop and is busy in investigation. Sd.
Gurvinder Singh Insp Police Station Dharamkot. Dated
01.09.2023.
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been falsely implicated in the present case as nothing has
been recovered from the petitioner and the alleged recovery of 50
intoxicating tablets which later on came to be Etizolam weighed 6.06
grams was recovered from co-accused Baaj Singh. He submits that the
petitioner was nominated in the present FIR vide DDR No. 19 dated
01.09.2023 on the basis of disclosure statement of co-accused Baaj Singh.
3 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225
CRM-M-28245-2024
4
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 1 year, 3 months and
28 days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that the
petitioner is a habitual offender as he is involve in other FIRs. He further
points out that during investigation of the present case, it was found that
petitioner has been arrested in connection with case bearing FIR No.208
Dated 16.09.2023 u/s 22 NDPS Act PS Dharamkot, so after getting the
permission from the Court, the petitioner was formally arrested by the
police on 18.09.2023, in the present case bearing FIR No.195 dated
01.09.2023 u/s 22/29 NDPS Act PS Dharamkot and the petitioner was
sent to judicial custody.
He further points out that as per FSL report Etizolam salt
was found in the recovered tablets and in this way recovery effected in
this case falls within ambit of commercial quantity, so provisions of
section 37 of NDPS Act have been applicable in the present case.
The challan against petitioner and Baj Singh was presented before the
Court on 30.11.2023 and charge against them has been framed on
06.12.2023 and now case is fixed for 03.12.2024 for prosecution
evidence.
4. Analysis
Be that as it may, from the above discussion, it can be culled
out that the petitioner has already suffered sufficient incarceration i.e. 1
4 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225
CRM-M-28245-2024
5
year, 3 months and 28 days, no recovery is effected from conscious
possession of the petitioner and he was nominated in the present FIR on
the basis of disclosure statement of co-accused Baaj Singh 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 31.11.2023 charges stands
framed on 06.12.2023 out of 14 prosecution witnesses, only 2 PWs have
been examined so far which is sufficient for this Court to infer that the
conclusion of trial is likely to take considerable time and therefore,
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
5 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225
CRM-M-28245-2024
6
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 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 suspect
or an accused person to police custody or judicial custody. There
are several reasons for this including maintaining the dignity of an
6 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225
CRM-M-28245-2024
7
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
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 pre-conviction period
7 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225
CRM-M-28245-2024
8
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 the
concession of bail.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail on his furnishing bail
and surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
8 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
Neutral Citation No:=2025:PHHC:006225CRM-M-28245-2024
9The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
16.01.2025
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
9 of 9
::: Downloaded on – 18-01-2025 11:17:09 :::
[ad_1]
Source link