18 Adjournments Taken After Framing Of Charges; Reasons To Believe He's Not Guilty: P&H High Court Grants Bail To Accused In NDPS Case
Granting bail to an accused in a case involving recovery of 500 grams of heroin – which qualifies as 'commercial quantity' under the NDPS Act, the Punjab and Haryana High Court said his argument that he has been falsely implicated in the case gets substantiated from the fact that on 18 dates, no prosecution witness came forward for deposition before the trial court.Holding that...
Granting bail to an accused in a case involving recovery of 500 grams of heroin – which qualifies as 'commercial quantity' under the NDPS Act, the Punjab and Haryana High Court said his argument that he has been falsely implicated in the case gets substantiated from the fact that on 18 dates, no prosecution witness came forward for deposition before the trial court.
Holding that conditions under Section 37 NDPS Act are satisfied in the case, the court said it is of the prima facie view that there are reasons to believe at least at this stage that the petitioner is not guilty of the offence.
"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," Justice Jasgurpreet Singh Puri said.
The accused had filed a second bail application before the court in the case registered against him and a co-accused under Sections 21, 61 and 85 of the NDPS Act at Police Station Maqsudan, District Jalandhar Rural for the alleged possession of 500 grams of heroin.
Senior Advocate Dr. Anmol Rattan Sidhu, representing the accused, submitted that he has been in custody for more than two years. It was also argued that the accused is not a habitual offender and is not involved in any other case under the NDPS Act. However, the court was told a case under Section 279 IPC was registered against him in 2014.
Contending that the entire prosecution story is false and that the accused was falsely implicated in the case when he was going to Jammu & Kashmir with his friends, Sidhu submitted that even though charges were framed more than a year ago, till date only one prosecution witness has been examined - a mere formal witness who had collected the sample and sent it to the Forensic Science Laboratory.
"There was a team of 5-6 police personnel including Sub-Inspector, Assistant Sub-Inspector, Head Constable and other officials, who as per the FIR constituted the police party but none of them have stepped into the witness box and deposed despite the fact that more than one year has lapsed after the framing of the charges," Sidhu submitted.
The bench was told that despite adjournments and orders summoning the witnesses, they have not appeared and deposed before the trial court resulting in delay of the proceedings.
"There is no justification coming forward as to why the police party who allegedly apprehended the petitioner as per the prosecution story, has chosen not to step into the witness box for more than 1 year and 2 months despite 18 adjournments and repeated summons sent to them which goes to show that on the face of it the petitioner has been falsely implicated in the present case," he said.
Sidhu relied on Supreme Court's recent decision in Satender Kumar Antil v. Central Bureau of Investigation and Another, 2022 AIR (SC) 3386 to contend that the right of speedy trial is fundamentally guaranteed to him under Article 21 of the Constitution. He argued it is a false case where the bar contained under Section 37 should not apply.
The State conceded to the factual submissions made by the petitioner's counsel.
Justice Puri in the order recorded that the police has failed to answer its query as to why more than one year after the framing of the charges, the police party - who had rather put the criminal law into motion, failed to appear before the Court and depose for 18 dates.
"A perusal of the zimni orders would show that for a number of times Judge, Special Court directed that the prosecution witnesses who are the official witnesses in the present case be summoned through the SSP. Despite the fact that such orders were passed, till date, nobody has come forward for deposition. No justification has come forward from the State counsel as to what prevented them for deposing in Court and with the result that 18 adjournments were granted by the learned Special Court."
The court further said argument raised by the senior counsel, that the delay has been caused by the prosecution and not by the petitioner which has resulted in his incarceration for more than two years without his fault and on this ground he deserves the concession of regular bail, carries weight.
"So far as the arguments raised by the learned senior counsel that he has been falsely implicated in the present case, this Court is of the view that the same get substantiated from the fact that for 18 times no prosecution witness came forward for deposition," it added, while granting bail to the accused, especially considering that he has been in custody for more than two years.
Case Title: Sumit Khatri v. State of Punjab
Citation: CRM-M-43867 of 2022
Coram: Justice Jasgurpreet Singh Puri
Citation: 2022 LiveLaw (PH) 317
Click Here To Read/Download the Order