Punjab-Haryana High Court
Kamla vs State Of Punjab on 7 January, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:000472 CRM-M-63783-2024 -1- 221 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-63783-2024 DECIDED ON: 07.01.2025 KAMLA .....PETITIONER VERSUS STATE OF PUNJAB .....RESPONDENT CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL Present: Mr. Paras Jagga, Advocate for Mr. Jagdish Singh Mahal, Advocate for the petitioner. Mr. Jasjit Singh Rattu, DAG, Punjab. SANDEEP MOUDGIL, J (ORAL)
1. Relief sought
The jurisdiction of this Court has been invoked under Section
483 of BNSS, 2023 for grant of regular bail to the petitioner in FIR No.0183,
dated 07.10.2023, under Sections 21(b), 27(a) of NDPS Act (Section 29 of
the NDPS Act added later on), registered at Police Station Dinanagar,
District Gurdaspur.
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
“SHO PS Dinanagar. Jai Hind. Today I SI alongwith ASI
Naresh Kumar 562/G, ASI Rupinder Singh 693/G, ASI
Satnam Singh 197/G, L/CT Rajwant Kaur 73/G, on
private vehicle, were going towards village Jhandechak,
Paniar, Gadhian etc. regarding patrolling and checking1 of 8
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of vehicles, when the police party while patrolling
reached in the big street, at the western side of village
Paniar then from the opposite side, from the small street
of village Paniar, one lady was seen coming who on
police party suddenly got perplexed and turned back in
hurried manner who was apprehended with the help of
colleagues on the basis of suspicion and enquired about
the name and address who disclosed her name as Asha
Rani w/o Bagga Ram r/o Shankar, PS Nakodar, Distt.
Jalandhar presently village Paniar to whom I disclosed
my name, rank and posting and issued notice u/s 50 of
NDPS Act and said that I am having suspicion that you
are having some intoxicant substance with you due to
which your search is to be conducted but you are having
legal right that you can get yourself search through some
Magistrate or some Gazetted officer who can be called at
the spot just now who said that she is having full faith on
me. She wants to get herself throgh the lady employee
present alongwith me. upon which, consent memo was
prepared and before conducting the search, some public
witness was tried to join into the police party but
everyone disclosed their helplessness and did not become
ready to join the police party. Upon which, I SI
conducted the search of Asha Rani w/o Bagga r/o
Shankar, PS Nakodar, Distt. Jalandhar presently r/o
Village Paniar as per rules through lady employee
Rajwant Kaur 73/G then from the polythene bag having
in her right hand, rupees and one small transparent
polythene bag containing heroin got recovered. That the
recovered heroin was weighed by me on the computerized
scale lying in my investigating kit/bag which on
weighing, came to be 15 grams heroin alongwith
polythene bag. Then the recovered heroin including
transparent polythene bag put into a plastic box and2 of 8
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parcel was prepared. The parcel. was sealed by me with
my seal DS/1 and the money lying in the abovesaid
polythene bag took out and on counting, 4 notes of
Rs.500 and 1 note of Rs.200 totaling to Rs.2200 Indian
currency notes got recovered. That on asking about the
above recovered notes, Asha Rani above disclosed that
these have been collected by her after selling heroin.
After preparing a separate parcel of above notes, I sealed
the same with my seal DS/1 and took the abovesaid
parcel of heroin into police possession vide separate
memo. The sample seal was prepared separately. The
seal after use, handed over to ASI Satnam Singh 197/G.
Accused Asha Rani abovesaid has committed an offence
u/s 21 (b) / 27(A)-61- 85 of NDPS Act after keeping in
her possession 15 grams heroin including the small
transparent polythene bag and Rs.2200 (Indian currency
notes) drug money. Therefore, after writing the ruka, the
same is being sent to the police station by hand through
ASI Rupinder Singh 693/G for registration of FIR. After
registering the case, number be intimated. Special
reports be issued and be sent to the Illaga Magistrate and
officers. Control room be informed through wireless. I SI
busy in investigation at the spot.”
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that the petitioner
was nominated as an accused in the instant FIR only on the basis of
disclosure statement of co-accused Asha Rani, from whose possession 15
grams of heroin and drug money of Rs.2200/- were recovered, which is non-
commercial in nature. He further contends that nothing has been recovered
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from the possession of the present petitioner and there is no evidence or
cogent material to connect the petitioner with the said contraband.
On behalf of the State
On the other hand, learned State counsel has produced the
custody certificate of the petitioner today in Court, which is taken on record.
He seeks dismissal of the instant petition urging that in the disclosure
statement of co-accused Asha Rani, it has been categorically asserted that
she purchased the alleged contraband i.e. 15 grams of heroin from the
present petitioner only. He further submits that the petitioner is involved in
other multiple cases of NDPS Act alone and therefore, being a habitual
offender does not deserve the concession of regular bail at this stage.
4. Analysis
Be that as it may, considering the custody period i.e. 02 months
and 03 days for which the petitioner has suffered incarceration; nothing has
been recovered from the possession of the present petitioner; recovered
contraband i.e. 15 grams of heroin is admittedly non-commercial in nature
and chances of false implication of the petitioner cannot be ruled out at this
stage since there is no other connecting evidence put forth by the State
against the present petitioner except disclosure statement of co-accused Asha
Rani in addition to the fact that investigation is complete, challan stands
presented to Court on 29.11.2024, charges are yet to be framed and total 15
prosecution witnesses have been cited, which is suffice for this Court to infer
that the conclusion of trial will take long time for which the petitioner cannot
be detained behind the bars for an indefinite period.
Reliance can be placed upon the judgment of the Apex Court
rendered in “Dataram versus State of Uttar Pradesh and another“, 2018(2)
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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 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
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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, (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
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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 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
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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 discussions made hereinabove, the petitioner is
hereby directed to be released on regular bail on her 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)
07.01.2025 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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