CRM-M-36872-2025 -1- 239 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-36872-2025 DECIDED ON: 21.07.2025 HAROON MASIH @ SHERA .....PETITIONER VERSUS STATE OF PUNJAB .....RESPONDENT CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL Present: Mr. Tarun Vir Singh Lehal, Advocate for the petitioner. (through Hybrid Mode). SANDEEP MOUDGIL, J (ORAL) 1. Prayer The jurisdiction of this Court has been invoked under Section 483 BNSS for grant of regular to the petitioner in case FIR No.60, dated 19.06.2024, under Section 21(a), 27-A and 29 of NDPS Act, 1985, registered at Police Station Kalanaur, District Gurdaspur. 2. Contentions On behalf of the petitioner Learned counsel for the petitioner has submitted that the petitioner has been falsely implicated on the basis of disclosure suffered by his co-accused namely Balwinder Singh @ Billi, who is already on bail, and 5 grams of heroin along-with Rs.20,000/- has been shown to be recovered from the petitioner. Notice of motion. On behalf of the State At the asking of Court, Mr. Rajiv Verma, Senior DAG Punjab appearing on advance notice, accepts the same on behalf of respondent-State and SHAM SUNDER 2025.07.22 11:05 I attest to the accuracy and integrity of this document CRM-M-36872-2025 -2- filed the custody certificate of the petitioner. According to which, the petitioner has suffered incarceration for a period of 1 year and 28 days, as of now. He prays for dismissal of the present petition stating that the petitioner is a habitual offender, as he is involved in 5 other cases of similar nature. 3. Analysis Be that as it may, considering the fact that the petitioner has been nominated on the basis of disclosure suffered by Balwinder Singh @ Billi, who is already on bail and the fact that the alleged recovery i.e. 5 grams of heroin is non- commercial in nature coupled with the facts that after framing of charges on 10.12.2024, out of total 8 prosecution witnesses none has been examined so far, which clearly indicates that conclusion of trial would take considerable time, this Court is of the considered view that keeping the petitioner incarcerated for an indefinite period serves no useful 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 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 SHAM SUNDER 2025.07.22 11:05 I attest to the accuracy and integrity of this document CRM-M-36872-2025 -3- 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 SHAM SUNDER 2025.07.22 11:05 I attest to the accuracy and integrity of this document CRM-M-36872-2025 -4- 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. 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. SHAM SUNDER 2025.07.22 11:05 I attest to the accuracy and integrity of this document CRM-M-36872-2025 -5- 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 “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 contention of learned State counsel with regard to 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 course of trial has to be looked into with reference to the evidence in that case alone and not with respect to the SHAM SUNDER 2025.07.22 11:05 I attest to the accuracy and integrity of this document CRM-M-36872-2025 -6- 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 lend the petitioner in a situation of denial the concession of bail. 4. 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 learned Chief Judicial Magistrate/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) 21.07.2025 JUDGE sham Whether speaking/reasoned : Yes/No Whether reportable : Yes/No SHAM SUNDER 2025.07.22 11:05 I attest to the accuracy and integrity of this document