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On December 12, 2022, the Punjab and Haryana High Court in a single Judge bench consisting of Justice Jasgurpreet Singh Puri, while granting a regular bail in NDPS matters, observed that “once the criminal law was set into motion by the police itself then the police officials, especially in the NDPS matters, must depose before the Court but on a large number of times they did not depose even though they were served and repeated warrants were issued against them”.
Brief Facts:
The petitioner was apprehended by the patrolling party on the suspicion of carrying some intoxicant substance and it was alleged that there was a recovery of 1060 tablets of Tramadol. The petitioner was in custody from 16.06.2021 i.e., almost for 1½ years. After completion of the investigation, the final report under section 173 of the Code of Criminal Procedure was prepared and presented to the competent Court on 15.12.2021. the charges were framed on 18.02.2022 but till 19.12.2022 no prosecution witness was examined. On 14.03.2022 no PW was present. Similarly, on 05.04.2022, 26.04.2022, 20.05.2022, and subsequently on other hearing dates also no PW was present even after bailable warrants, non-bailable warrants, and even arrest warrants were issued by the Addl. Sessions Judge. Hence, the present petition was preferred by the petitioner. It was filed under section 439 of the Code of Criminal Procedure for the grant of regular bail in FIR No.70 dated 16.06.2021, under Sections 22 & 25 of the NDPS Act, 1985.Contentions of the Petitioner:
The counsel for the petitioner submitted that “there was a recovery of 1060 tablets of Tramadol from him which although fall in the category of commercial quantity but the bar contained under Section 37 of the NDPS Act will not apply in the present case in view of the peculiar facts and circumstances.” He further submitted that the petitioner was not a habitual offender and is not involved in any other case at all. While giving the factual matrix of the case, he further stated that the learned Court had issued bailable warrants in the sum of Rs.5000/- with one surety in the like amount but when the matter was taken up on 05.04.2022 again no prosecution witness was present.
He added that the adjournments were granted a large number of times by the learned Addl. Sessions Judge to secure the presence of the prosecution witnesses but they did not even turn up despite the fact that they were served several times and bailable, non-bailable and even arrest warrants were issued against the prosecution witnesses who were none other than the persons who were the part of the police party and are the material witnesses as well as the official witnesses who had rather put the criminal law into motion. The petitioner had faced incarceration for the last 1½ years only because of the aforesaid conduct of the prosecution and the police party.
Contentions of the Respondent:
The counsel representing the state submitted that it was correct that the petitioner had faced incarceration for about 1½ years and the charges were framed on 18.02.2022 and thereafter number of times the matter was adjourned and repeatedly bailable and non-bailable warrants were issued. He further stated that the petitioner was not a habitual offender and was not involved in any other case.
Observations of the Court:
The Hon’ble court observed that once the criminal law was set into motion by the police itself then it was the duty of the police officials especially in the NDPS matters to depose before the Court but on a large number of times they did not depose even though they were served and repeated warrants were issued against them.
The court while considering the prayer of the petitioner stated that “the effect of Section 37 of the NDPS Act has to be seen in the light of the aforesaid facts and circumstances. This Court has prima facie reasons to believe at least at this stage that the petitioner is not guilty of the offence and so far as the second ingredient for departing the bar contained under Section 37 of the NDPS Act is concerned, the petitioner is stated to be not involved in any other case.” Moreover, it was not argued by the state counsel that the petitioner might repeat the offence after his release or might abscond from justice or influence any witness. He was also not able to justify the reason why prosecution witnesses had not been able to step in the witness box.
The case of Satender Kumar Antil v. Central Bureau of Investigation and another was referred by the court in which the issue of adjournment was dealt with. It was also stated that “the right to a speedy trial is a Fundamental Right guaranteed under Article 21 of the Constitution of India.”
The Decision of the Court:
The present petition was allowed and the petitioner was released on regular bail.
Case Title: Sukhwinder Singh Vs. State of Punjab
Coram: Hon’ble Mrs. Justice Jasgurpreet Singh Puri
Case No.- CRM-47812 of 2022 in/and CRM-M-48421 of 2021 (O&M)
Advocate for Petitioner: Mr. SPS Khaira
Advocate for Respondent: Mr. Jashandeep Singh
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(With input from news agency language)
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