Punjab-Haryana High Court
Gurdhir Singh Alias Dhira vs State Of Punjab on 5 August, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:099612
CRM-M-36045-2024 1
216
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-36045-2024
DATE OF DECISION: 05.08.2024
GURDHIR SINGH ALIAS DHIRA ...PETITIONER
Versus
STATE OF PUNJAB ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr.P.S.Sekhon, Advocate for the petitioner(s).
Mr. J.S. Rattu, DAG, Punjab.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought The jurisdiction of this Court under Section 439 Cr.P.C., has been invoked for the grant of regular bail to the petitioner in case FIR No. 39, dated 18.04.2021, under Sections 18 and 29 of NDPS Act 1985 registered at Police Station Moonak, District Sangrur.
2. Prosecution story set up in the present case as per the version in the FIR read as under :-
'Contents: "Copy of Ruqa, Officer Incharge of PS Moonak. Sir, today I ASI along with HC Nirmal Singh 1755/SGR, HC Lakkha Singh 6/442, PHG Kuljinder Singh 26639 in private vehicle having laptop and printer was present at Talib Chowk Moonak in relation to checking of suspicious person and patrolling. Meanwhile time around 9:15 PM a secret informer gave tip off to me that Gurdheer Singh Dhira son Garib Singh resident of village Ghanukarhi PS Sadar Nabha, District Patiala and Uday Lal son of Chhogga resident of Tariba, PS Poond, District Bhirwala (Rajasthan) are habitual of selling opium to their regular customers after bringing the same 1 of 7 ::: Downloaded on - 06-08-2024 10:12:40 ::: Neutral Citation No:=2024:PHHC:099612 CRM-M-36045-2024 2 from Rajasthan by using their canter make Eicher bearing registration no. HR-69-B-2951. Today also they will go from Tohana towards Jakhal via Moonak in their said canter having in their possession heavy quantity of opium. If immediate planned picket can be conducted at T-Point Ballana Road, Moonak then said Gurdheer Singh and Uday Lal can be apprehended along with their canter make Eicher bearing registration no. HR-69-B-2651 and heavy quantity of opium can be recovered. The information is credible and reliable. The act of said Gurdheer Singh Dhira and Uday Lal by bringing heavy quantity of opium for sale by using their said canter make Eicher bearing registration no. HR-69-8-2651 fulfills the ingredients of commission of offence under Section 18/61/85 of ND&PS Act. So sending the ruga to Police Station Moonak by hand PHG Kulwinder Singh 26639 for registration of case under said offence against said Gurdheer Singh Dheera and Uday Lal. Kindly inform about FIR number after registering the case. As per the guidelines of the Hon'ble Apex Court kindly send the SHO, Moonak or some other competent IO at the spot for conducting further investigation. I ASI along with fellow policemen is going to conduct picket at T-Point Ballana Road, Moonak. Today at Talib Chowk, Moonak time 9:45 PM. Sd/ PS Moonak dated 1.04.2021.'
3. Contentions On behalf of the petitioner Learned counsel for the petitioner has argued that the petitioner has been falsely implicated in this case. He submits that as per the version of the prosecution, during the search 11 kg and 500 grams of opium was allegedly recovered. He further submits that the petitioner has been in custody since 18.04.2021. He submits that investigation is complete as challan stands presented on 14.10.2021 and charges have been framed on 08.02.2022 and no fruitful purpose would be served by 2 of 7 ::: Downloaded on - 06-08-2024 10:12:41 ::: Neutral Citation No:=2024:PHHC:099612 CRM-M-36045-2024 3 keeping the petitioner behind the bars as conclusion of trial would take long time as out of total 15 Prosecution Witnesses, only 4 PWs have been examined so far. Another contention raised by counsel for the petitioner is that similarly situated co-accused namely Uday Lal @ Udhai Lal has already been granted concession of bail by this Court vide order dated 28.08.2023 passed in CRM-M-41365-2023.
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 3 years, 3 months and 12 days.
Learned State Counsel submits on instructions from the Investigating Officer opposes the prayer for grant of regular bail on the ground that the petitioner is involved in an another FIR i.e. FIR No. 90/2021 registered under Section 52-A of the Prisons Act, at P.S.Cantt. Bathinda, meaning thereby, he is a habitual offender but is not in a position to controvert the submissions made by counsel for the petitioner.
4. Analysis From the above case it can be culled out the petitioner has already suffered sufficient period in custody i.e. 3 years, 3 months and 12 days, similarly situated co-accused has already been granted the concession of regular bail by this Court, 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 14.10.2021 and charges have been framed on 08.02.2022, out of 15 prosecution witnesses, 4 have been examined so 3 of 7 ::: Downloaded on - 06-08-2024 10:12:41 ::: Neutral Citation No:=2024:PHHC:099612 CRM-M-36045-2024 4 far which is sufficient for this Court to infer that the conclusion of trial is likely to take considerable time and detaining the petitioner behind the bars for an indefinite period would solve no purpose.
Reliance can be made 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
4 of 7 ::: Downloaded on - 06-08-2024 10:12:41 ::: Neutral Citation No:=2024:PHHC:099612 CRM-M-36045-2024 5 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 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 5 of 7 ::: Downloaded on - 06-08-2024 10:12:41 ::: Neutral Citation No:=2024:PHHC:099612 CRM-M-36045-2024 6 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 basic fundamental law that right to speedy trial is a part of reasonable, fair and just procedure guaranteed 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 case and involvement of the petitioner in other cases is concerned, the petitioner is on bail in that case and reliance can be placed upon the order of this Court 6 of 7 ::: Downloaded on - 06-08-2024 10:12:41 ::: Neutral Citation No:=2024:PHHC:099612 CRM-M-36045-2024 7 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 under Section 439 Cr.P.C. on his/her 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.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
05.08.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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