CRM-M-1966-2025 -1- 216 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-1966-2025 RESERVED ON: 11.02.2025 PRONOUNCED ON:09.04.2025 PAWAN KUMAR @ PAWAN AGGARWAL ...PETITIONER VERSUS STATE OF PUNJAB ... RESPONDENT CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL Present: Mr. P.S. Sekhon, Advocate for the petitioner. Mr. Jaspal Singh Guru, AAG, Punjab. *** SANDEEP MOUDGIL, J (ORAL) 1. Prayer This petition has been filed under Section 439 of the Code of Criminal Procedure (483 BNSS,2023) for grant of regular bail to the petitioner in FIR No. 91 dated 08.03.2024 registered under sections 15/29/61/85 of NDPS Act, Police Station City Barnala, District Barnala. 2. Facts Prosecution story set up in the present case as per the version in the FIR reads as under :- ‘Copy of ruqa, 'Office Incharge PS City Barnala Fateh today I, Sub Inspector along with ASI Naib Singh 576/BNL, Hav.Daljit Singh 745/BNL and C.Gurjit Singh No.143/BNL in official vehicle No.PB-13BA-1824 driven by ASI Amarjit Singh 434/BNL along with laptop, printer SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document CRM-M-1966-2025 -2- and investigation kit was going towards Jail Barnala from Barnala City via Bajakhana road in connection with patrolling and checking of suspicious persons, when police party reached pul drain Bajakhana Road in the jurisdiction of Barnala then at about 1:40 PM, the police party saw a young boy sitting on the bank drain on right side having a plastic bag and I got stopped vehicle for checking him on the basis of suspicion, then said young boy got panic and tried to slip from there, who was apprehended by police party and his name and address was asked. He told his name as Rajan son of Barkha Singh resident of Gali No.1, Ram Bagh Road, Barnala. Thereafter I tried to join private witness from nearby, but every person showed his own compulsion, due to which private witness could not be joined. Thereafter I, got introduced myself to above Rajan that 'I Yashpal, am Sub Inspector of Punjab Police and posted as Inspector in CIA Barnala. I have worn uniform as per my rank and my name plate is fixed. I have a doubt of having some intoxicant substance or any illegal article with you in your plastic bag, due to which I want to make search of plastic bag in possession of you, but you have legal right that if you want to get your plastic bag searched in presence of some gazetted officer or Magistrate Sahib then out of them any officer can be called at the spot or you along with plastic bag can be taken to them. Upon which said Rajan said to me that I have heard you entirely and have understood. I have full faith upon you. You can make search of my plastic bag. Upon which Rajan was informed about the notice under Section 50(1) ND&PS Act and notice and consent memo were prepared separately. Thereafter I opened the mouth of plastic bag in possession of above Rajan and checked it, out of same poppy husk was recovered. Recovered poppyhusk was weighted on weight and it was 12 Kg. along with plastic bag. Thereafter, I put recovered poppy husk in another plastic bag and prepared a parcel. The empty plastic bag was put in another plastic bag and parcel was prepared. Thereafter I put me seal YP on both the parcels and prepared a sample seal. After use I handed over seal to ASI Naib Singh 576/BNL. Thereafter I took above said parcels along with sample seal vide memos in to police possession. Recovery memo was prepared separately. Further personal search of above Rajan was conducted and one Mobile Marka OPPO touch screen black colour SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document CRM-M-1966-2025 -3- and Rs.370/- currency notes were recovered, which were taken into police possession vide separate memos, personal search memo was prepared separately. As such, Rajan have committed an offence under Section 15/61/85 of NDPS Act by keeping poppy husk in his possession. As such, this ruqa is being sent to Police Station City through C.Gurjit Singh 143/BNL for registration of case against above said Rajan. After registration of case, higher officers and control room be informed. I, SI along with official, am busy in investigation at the spot. Sd/- Yashpal, CIA, Barnala dated 08.03.2024. Today in the area of pul Drain Bajakhana Road Barnala 3:45 PM.’ 3. Contentions On behalf of the petitioner Learned counsel for the petitioner has contended that the petitioner has been falsely implicated in the present case on the basis of disclosure statement suffered by the co-accused namely Gursewak Singh and nothing has been recovered from the conscious possession of the present petitioner. It is further contended that initially there was no secret information qua the petitioner and only 12 Kg poppy husk was recovered from the co-accused namely Rajan. Thereafter, co- accused Gursewak Singh was arrayed as accused on his disclosure statement on 11.03.2024 and 100 Kg of poppy husk was recovered on 23.04.2024. Further more the petitioner was nominated as an accused on the basis of disclosure statement suffered by Gursewak Singh, who has already been enlarged on regular bail by this Court vide order dated 16.12.2024 passed in CRM-M-51981-2024 (Annexure P-3). 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. SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document CRM-M-1966-2025 -4- According to which, the petitioner is behind bars for the last 7 months and 27 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 involved in other cases of similar nature but is not in a position to controvert the submissions made by learned counsel for the petitioner with regard to the fact that the co-accused namely Gursewak Singh from whose disclosure statement the petitioner is nominated as an accused and from whom the recovery has been effected has already been granted the concession of regular bail by this Court. 4. Analysis Looking into the totality of the circumstances mentioned above, it can be culled out that the petitioner has already suffered sufficient incarceration i.e.7 months and 27 days, no recovery was effected from him and was nominated in the present FIR only on the basis of the disclosure statement made by co-accused namely Gursewak Singh who has already been granted the concession of regular bail by this Court vide order dated 16.12.2024 (Annexure P-3), more so, 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 07.10.2024 wherein the prosecution has cited 17 witnesses and charges are yet to be framed, meaning thereby, 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. SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document CRM-M-1966-2025 -5- 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 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 SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document CRM-M-1966-2025 -6- 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 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. SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document CRM-M-1966-2025 -7- 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 hearingthe 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 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 SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document CRM-M-1966-2025 -8- 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. The petition in the aforesaid terms stands allowed (SANDEEP MOUDGIL) JUDGE 09.04.2025 Sham Whether speaking/reasoned Yes/No Whether reportable Yes/No SHAM SUNDER 2025.04.09 19:40 I attest to the accuracy and integrity of this document