Last Updated on June 7, 2024 by Satish Mishra
In this post, we will discuss the grounds on which the regular bail under section 439 CrPC is granted from Punjab and Haryana High Court Chandigarh with a view that there is delay in lodging FIR as well as on the ground of personal search under section 22 of NDPS act.
In this post, we will discuss the grounds on which the regular bail under section 439 CrPC is granted from Punjab and Haryana High Court Chandigarh with a view that there is delay in lodging FIR as well as on the ground of personal search under section 22 of NDPS act.
In recent judgment of the Hon’ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation and another 2022 AIR (SC) 3386 and contended that right of speedy trial is the fundamental right under Article 21 of the Constitution of Inda and there should not be any repeated adjournments without any justification, whereas, in the present case without any justification, 18 adjournment were granted and only one witness who was examined was a formal witness.
This Court is sanguine of the fact that according to the proposition settled by the Apex Court in Dataram Singh vs. State of Uttar Pradesh & Anr. 2018(2) R.C.R. (Criminal) 131, that keeping somebody behind the bars, till his guilt is proved, for an indefinite period amounts to infringement of his right to life and liberty, as enshrined under Article 21 of Constitution of India and is against the principle “bail is a rule” and “jail is an exception”
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 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.
Apart from that, basic fundamental criminal jurisprudence is also to be borne in mind while granting bail to the petitioner in the instant case in hand, trial is likely to take long time wherein the quantity of contraband recovered from the petitioner is over and above the commercial quantity.
Apart from the same, so far as the second ingredient for making a departure from the bar contained under Section 37 of the NDPS Act is concerned, the petitioner is stated to be not involved in any other case under the NDPS Act nor it has been argued by the learned State counsel that in case the petitioner is released on bail, then he may repeat the offence or may abscond from justice. Therefore, both the conditions for making a departure from the bar contained under Section 37 of the NDPS Act remain satisfied.
This view is based on latest judgment of Punjab Haryana High Court on granting regular bail to the accused on the grounds of delay in lodging of FIR and recovery from the personal search of the Petitioner from Harmanjit Singh Vs. State of Punjab on 1 March, 2021.
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Brief Facts of the case are :
- Petitioner seeks grant of regular bail under Section 439Cr.P.C in case bearing FIR No.205 dated 31.07.2020 registered under Section 22of the NDPS Act and Section 52-A of Prisons Act at Police Station City Rupnagar, District Rupnagar.
- As per allegations, from the personal search of the petitioner, 32 intoxicants tablets (Adnok) were recovered when he returned after attending the Court proceedings. Bail in NDPS
- Learned counsel for the petitioner submitted that the alleged recovery is effected on 11.02.2020, but the FIR in question was lodged only on 31.07.2020 i.e. after a delay of 1 of 2 more than 5 months. Even in case of personal search, Section 50of the NDPS Act has not been complied with.
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- Learned State counsel on instructions from ASI Narender Singh submits that the delay has occasioned due to pending inquiry against the petitioner. Petitioner is having antecedent behaviour of criminal activities. Petitioner is in custody since 21.08.2020.
- There is delay in lodging the FIR and recovery from the personal search of the petitioner.
- In view of above, petition is allowed. Petitioner is ordered to be released on regular bail, subject to his furnishing adequate bail bonds/surety bonds to the satisfaction of the trial Court/concerned Duty Magistrate.
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Historical Background of Bail:
The concept of bail can be traced back to 399 B.C, when Plato tried to create a bond for release of Socrates. The modern system of bail evolved from England. In medieval England, the sheriffs originally possessed the sovereign authority to release or hold suspected criminals. 11 Some sheriffs would exploit the bail for their own gain. The Statute of Westminster (1275) limited the discretion of sheriffs with respect to the bail. Although sheriffs still had the authority to fix the amount of bail required, the statute stipulates which crimes are bailable and which are not.
In the early 17th century, King Charles I ordered noblemen to issue him loans. Those who refused were imprisoned. Five of the prisoners filed a habeas corpus petition arguing that they should not be held indefinitely without trial or bail. In the Petition of Right (1628) Parliament argued that the King had flouted Magna Carta by imprisoning people without just cause.
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OBJECTIVE OF BAIL
Sanjay Chandra v CBI.
It defined the objective of bail as follows In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test.
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LEGAL PROVISIONS
The concept of bail emerges from the conflict between the police power to restrict the liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the person accused of an offence. Bail is regarded as a mechanism whereby the State imposes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.
The provisions relating to the grant of bail are enshrined in Chapter XXXIII, under sections 436- 450 of Cr.P.C. Offences have been classified into bailable and non bailable and “cognizable” and “non-cognizable”. Officer-in-charge of police station, Magistrate, Sessions Court and High Court are empowered under Cr.P.C. to deal with bail, imposing conditions on bail, cancellation of bail or anticipatory bail. Provisions As To Bail And Bonds
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POWER OF SESSIONS COURT AND HIGH COURT REGARDING THE BAIL
Section 439 gives Special powers to High Court or Court of Session regarding bail. It may direct that any person accused of an offence and in custody be released on bail. It may impose any condition which it considers necessary for the purposes mentioned in that sub-section. It may impose or set aside any condition imposed by a Magistrate when releasing or set aside or modified. When the offence is triable exclusively by the Court of Session, give notice of the application to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. It may also direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
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Amar Nath Singh v The State of Jharkhand
where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may by virtue of section 436 (2) refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court.
In Deepak Khosla v state of NCT of Delhi & Ors
Delhi High Court held that grant of bail to a person accused of bailable offence is governed by the provisions of section 436 of the code of criminal procedure, 1973. Bail in such cases is compulsory and a person accused of a bailable offence if prepared to furnish bail has the right to be released on bail and the Court has no discretion to deny bail.
(Conditions under which search of persons shall be conducted)
Also Read- Interpreting Section 37 of the NDPS Act, 1985
Parmanand v. State of Rajasthan (2017) :It cannot be disputed that before personal search is made of a person for recovery of a narcotic drug or psychotropic substance as provided under the provisions of the Act, mandatory provisions of Section 50 are required to be complied with and in absence thereof the entire search and recovery becomes suspect and vitiated and the accused is entitled to be acquitted on that ground alone. Sub-section (1) of Section 50 of the Act provides that when any officer duly authorised under Section 42 of the Act is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
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DETERMINATION OF QUANTITY OF THE NARCOTIC DRUGS OR PSYCHOTROPIC SUBSTANCES UNDER NDPS ACT
Important Judgments of the Hon’ble Supreme Court on determination of quantity of the Narcotic Drugs or Psychotropic Substances under NDPS Act.
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Hira Singh v. Union of India (2020) 2 Crimes(SC) The decision in the case of E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau· (2008) 5 SCC 161 taking the view that in the mixture of narcotic drugs or psychotropic substance with one or more neutral substance(s), the quantity of the neutral substance(s) is not to be taken into consideration while determining the small quantity or commercial quantity of a narcotic drug or psychotropic substance and only the actual content by weight of the offending narcotic drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, is not a good law In case of seizure of mixture of Narcotic Drugs or Psychotropic Substances with one or· more neutral substance(s), the quantity of neutral substance(s) is not to be excluded and is to be taken into consideration along with actual content by weight of the offending drug, while determining the “small or commercial quantity” of the Narcotic Drugs or Psychotropic Substances.
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Conclusion:
The Criminal Procedure Code, gives only an outline of the provisions of bail, but most of the work is done by the courts themselves. The judicial principles laid-down by the courts may be changed by the courts also. As far as the meaning and definition of bail is concerned it has not been statutory defined. Consequently, it continues to be understood as a right for assurance of freedom against State imposed restrains of security of appearance of a person for his release. Bail is generally a matter of judiciary discretion. While considering whether to grant or not to grant bail, conflicting claims of undoubtedly liberty of the accused and the larger interest of the society have to be taken note of.
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This post is written by Surbhi Yadav
For case specific advice, please contact Punjab Haryana High Court NDPS Bail Lawyers in Chandigarh Panchkula Mohali.
For more info, dial 99888-17966
