CRM-M-20172-2025 -1- 224 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-20172-2025 DECIDED ON: 08.05.2025 SHINDERPAL SINGH @ SHINDA .....PETITIONER VERSUS STATE OF PUNJAB .....RESPONDENT CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL Present: Mr. P.S. Sekhon, 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 for the second time under Section 439 Cr.P.C. (Section 483 of the BNSS) for grant of regular bail to the petitioner in FIR No.11, dated 21.01.2023, under Section 22 of the NDPS Act, 1985, Police Station Kot Ise Khan, District Moga. 2. Prosecution story setup in the present case as per the version in the FIR as under:- “Contents: - SHO PS KOT ISE KHAN, Today I ASI along with ASI Nachattar Singh 588/Moga, L/ASI Baljit Kaur 905/Moga, PHG Veer Singh 32422 regarding Operation Eagle 2 had conducted barricading near Gurudwara Baba Tulsi Dass Ji GT Road Amritsar Moga and then from the side of village Daulewala one young man was seen coming on foot and he on seeing the barricading suddenly tried to turn back and while turning POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document CRM-M-20172-2025 -2- back he threw one transparent white coloured polythene carry bag and from it some tablets scattered outside. Then I ASI apprehended with the help of fellow officials and inquired his name and particulars. He disclosed his name as Shinderpal Singh @ Shinda s/o Balvir Singh @ Beera r/o Daulewala District Moga. Then I ASI introduced myself to Shinderpal Singh as I am ASI Kulwant Singh 836/Moga and posted at PS Kot Ise Khan, I am in full uniform with name plate affixed. I have introduced my rank and posting to you and I have suspicion of some intoxicating substance in your possession, and keeping the same in possession is an offence, therefore, your search is required, but you have the legal right that you can get yourself searched in the presence of some Magistrate or Gazetted Officer and they can be called on the spot. Then Shinderpal Singh @ Shonda replied that whatever intoxicating tablets I was having, I threw them on the ground and you have already recovered them and apart from these I do not have anything intoxicating with me. I have full faith on you and you can search me on the spot. On this I ASI prepared a notice u/s 50(1) for Shinderpal Singh @ Shinda s/o Balvir Singh @ Beera r/o Daulewala and Shinderpal Singh @ Shinda signed the same in Punjabi language and as witness ASI Nachattar Singh 588/Moga and L/ASI Baljit Kaur 905/Moga signed it. Then I ASI collected the transparent carry bag and intoxicating tablets thrown by Shinderpal Singh @ Shinda and counted them. On counting they became 105 loose intoxicating tablets of light orange colour. The recovered intoxicating tablets were put into the same polythene carry bag by I ASI and then their parcel was prepared after putting the same into a cloth pouch and sealed it with my seal of initials KS. The sample seal was prepared on Form 29M and sample seal was attested. After the use the seal was handed over to ASI Nachattar Singh 588/Moga. Then I ASI took the parcel of recovered intoxicating tablets duly sealed with the seal of KS into police possession as evidence. The memo was POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document CRM-M-20172-2025 -3- signed by ASI Nachattar Singh 588/Moga and L/ASI Baljit Kaur 905/Moga as witness. Then I ASI conducted the personal search of Shinderpal Singh @ Shinder as per rules and from the right pocket of his worn lower Indian Currency note of Rs 100/- was recovered. It was taken into police possession by I ASI vide personal search memo. The memo was signed by Shinderpal Singh @ Shinder and as witnesses ASI Nachattar Singh 588/Moga and L/ASI Baljit Kaur 905/Moga. Apart from his worn clothes nothing expensive, jewellery or any other illegal thing was recovered. Shinderpal Singh @ Shinder has committed an offence u/s 22 of NDPS Act by keeping intoxicating tablets in his possession. Therefore, a rug for the registration of a case against him is being sent to PS by hand PHG Veer Singh 32422. After the registration the number of the case shall be informed. Special reports shall be issued and PCR shall be informed. I ASI along with fellow officials am busy in investigation on the spot.” 3. Contentions On behalf of the petitioner Learned counsel for the petitioner contends that the petitioner has been falsely implicated in the present case as nothing has been recovered from his conscious possession and he was picked up by the police from his house. He further contends that no independent witness was joined by the Investigating Officer in the present FIR during the course of investigation. It has been further contended that the petitioner is in custody since 21.01.2023 and after completion of the investigation, challan stands presented to Court on 10.04.2023, charges have been framed on 27.04.2023 and out of total 12 prosecution witnesses, 06 witnesses have been examined and 01 witness given up, meaning thereby, the conclusion of the trial will take long time. POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document CRM-M-20172-2025 -4- 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 on the ground that the petitioner is a habitual offender as he is involved in multiple cases. He further submits that the recovery of alleged contraband i.e. 105 loose intoxicating tablets of Atizolam was effected from the present petitioner. 4. Analysis Be that as it may, considering the custody period undergone by the petitioner i.e. 02 years, 03 months and 14 days added with the facts that investigation is complete, wherein after framing of charges on 27.04.2023 out of total 12 prosecution witnesses, 06 witnesses have been examined and 01 witness given up, which is suffice for this Court to infer that the conclusion of trial shall take considerable time, this Court is of the considering view that detaining the petitioner behind the bars for an indefinite period would serve 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 POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document CRM-M-20172-2025 -5- 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 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 POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document CRM-M-20172-2025 -6- 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. 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 POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document CRM-M-20172-2025 -7- 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 “Balwinder Singh versus State of Punjab and Another”, SLP (Crl.) No.8523/2024. Relevant paras of the said judgment reads as under:- “7. An accused has a right to a fair trial and while a hurried trial is frowned upon as it may not give sufficient time to prepare for the defence, an inordinate delay in conclusion of the trial would infringe the right of an accused guaranteed under Article 21 of the Constitution. 8. It is not for nothing the Author Oscar Wilde in “The Ballad of Reading Gaol”, wrote the following poignant lines while being incarcerated: “I know not whether Laws be right, Or whether Laws be wrong; All that we know who be in jail Is that the wall is strong; And that each day is like a year, A year whose days are long.” 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 POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document CRM-M-20172-2025 -8- 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. RELIEF : In view of the discussions made hereinabove, the petitioner is hereby directed to be released on regular bail on him 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) 08.05.2025 JUDGE Poonam Negi Whether speaking/reasoned Yes/No Whether reportable Yes/No POONAM NEGI 2025.05.08 18:03 I attest to the accuracy and integrity of this document