Surjit Singh @ Kala vs State Of Punjab

Jasgurpreet Singh Puri, J

The present is a fourth petition filed under Section 439 of the Code of Criminal Procedure for the grant of regular bail to the petitioner in FIR No.124 dated 02.09.2019, under Sections 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Sadar Batala, Tehsil Batala, District Gurdaspur.

Learned counsel for the petitioner submitted that the petitioner is in custody from 02.09.2019 and he was also granted interim bail for some time and after excluding the time of interim bail, the total custody of the petitioner comes out to be 03 years, 3 months and 10 days. He further submitted that the allegations against the petitioner were with regard to recovery of 1200 tablets of tramadol, which were falsely planted upon the petitioner and he is not involved in any other case.

He further submitted that the charges have already been framed in the present case on 26.11.2020, which is almost three years ago and till date only one prosecution witness has been examined and there is no justification as to why the prosecution witnesses have not been examined. He further submitted that considering the aforesaid facts and circumstances, the petitioner may be considered for grant of regular bail. He has referred to a judgment of the Hon'ble Supreme Court in Satender Kumar Antil versus Central Bureau of Investigation and another, [2022 (10) SCC

51] and contended that when there is a long custody, which is not attributable to the accused and the delay has been caused by the prosecution, then Rights under Article 21 of the Constitution of India are affected. He also referred to another judgment of Hon'ble Supreme Court in

“Mohd. Muslim @ Hussain versus State (NCT of Delhi)”, 2023 AIR (SC) 1648, wherein the scope of Section 37 of the NDPS Act vis-a-vis Article 21 of the Constitution of India has been discussed by taking a serious view with regard to long trial. He further referred to a judgment of Hon’ble Supreme Court in “Dheeraj Kumar Shukla versus The State of Uttar Pradesh”, 2023 SCC Online SC 918 and also another judgment of

Hon’ble Supreme Court in “Rabi Prakash versus The State of Odisha”, Special Leave to Appeal (Criminal) No.4169 of 2023 to contend that long custody itself is a ground for grant of bail notwithstanding the bar contained under Section 37 of the NDPS Act. He also submitted that in view of the aforesaid position, the petitioner may be considered for grant of regular bail.

On the other hand, Mr. Harsimar Singh Sitta, DAG, Punjab submitted that so far as custody of the petitioner is concerned, the same is correct and he is in custody for 03 years, 03 months and 10 days, after excluding the period on which he was granted interim bail. He also submitted that only one prosecution witness has been examined after framing of charges on 26.11.2020. He further submitted that there was delay in the trial because some of the other co-accused were not arrested and some were declared as proclaimed offenders. He also submitted that so far as the antecedents of the petitioner is concerned, he is not involved in any other case.

I have heard the learned counsel for the parties.

The petitioner is stated to have already suffered incarceration for more than 03 years, 03 months and 10 days and allegations against him are pertaining to 1200 tablets of tradamol, which although falls in the category of commercial quantity under the NDPS Act, this Court would therefore consider the prayer of the petitioner in the light of Section 37 of the NDPS Act. As per the learned counsel for the parties, the charges in the present case were framed on 26.11.2020, which is almost 03 years ago but only one prosecution witness has been examined. During the course of arguments, learned State counsel was asked as to what was the justification with regard to the same, to which he could not offer any justification.

Hon'ble Supreme Court in Satender Kumar Antil’s case (supra) has discussed this serious issue with regard to delay in trial and its effect on the Right to Life of an individual under Article 21 of the Constitution of India. Para No.49 of the aforesaid judgment is reproduced as under:-

“49. Sub-section (1) mandates courts to continue the proceedings on a day-to-day basis till the completion of the evidence. Therefore, once a trial starts, it should reach the logical end. Various directions have been issued by this Court not to give unnecessary adjournments resulting in the witnesses being won over. However, the non-compliance of Section 309 continues with gay abandon. Perhaps courts alone cannot be faulted as there are multiple reasons that lead to such adjournments. Though the section makes adjournments and that too not for a longer time period as an exception, they become the norm. We are touching upon this provision only to show that any delay on the part of the court or the prosecution would certainly violate Article 21. This is more so when the accused person is under incarceration. This provision must be applied inuring to the benefit of the accused while considering the application for bail. Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21. While the courts will have to endeavour to complete at least the recording of the evidence of the private witnesses, as indicated by this Court on quite a few occasions, they shall make sure that the accused does not suffer for the delay occasioned due to no fault of his own”.

Hon'ble Supreme Court in Mohd. Muslim Hussain's case (supra) has dealt with this issue with regard to delay in trial and long custody of the accused person vis-a-vis the bar contained under Section 37 of the NDPS Act. The relevant portion of the aforesaid judgment contained in para Nos.19 and 20 are reproduced as under:-

“19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

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.

The Hon'ble Supreme Court in Dheeraj Kumar Shukla’s case (supra) has observed as under:-

“3. It appears that some of the occupants of the 'Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.”

The Hon'ble Supreme Court again in Rabi Prakash’s case (supra) 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 condition stands complied with. So far as the 2nd condition re: formation of opinion as to 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.”

In view of the aforesaid facts and circumstances, this Court is of the view that the petitioner is having clean antecedents, has faced incarceration for more than 03 years, the bar contained under Section 37 of the NDPS Act will not apply to the present petitioner in the light of Article 21 of the Constitution of India and also in the light of the aforesaid judgments of the Hon’ble Supreme Court.

Consequently, the present petition is allowed. The petitioner shall be released on regular bail, if not required in any other case, subject to furnishing bail bonds/surety bonds to the satisfaction of the learned trial Court/Duty Magistrate concerned.

However, anything observed hereinabove shall not be treated as an expression of opinion on the merits of the case and is meant for the purpose of deciding the present petition only.