Sukhdev Singh vs State of Punjab

Surya Kant, J.—The petitioner seeks his release on regular bail in FIR No. 199 dated 5th September, 2003, u/s 15 of the N.D.P.S. Act, registered at Police Station, Jagraon.

The afore-stated FIR has been registered on the basis of the alleged secret information, inter-alia, alleging that Kulwant Singh @ Gola son of Devi Singh, who was in the habit of selling the poppy husk, had come along with his companion - Sukhdev Singh, namely, present petitioner with a huge quantity of poppy husk which was allegedly kept by them in an open place in the bushes at some distance from the Grain Market towards the Government installed tubewell. A raid was conducted and the petitioner along with the main accused - Kulwant Singh @ Gola are stated to have been apprehended on the spot along with 10 bags of poppy husk, weighing 355 kgs.

The petitioner was obviously arrested on 5th September, 2003. He is languishing in jail from the last more than four years.

When this petition came up for motion hearing on 11th October, 2007, a direction was issued to the learned trial-cum- Special Court at Ludhiana to send a status report as to how many opportunities have been granted to the prosecution to produce its witnesses and how many of them have been examined. In deference thereto, learned Special Court at Ludhiana has sent its report dated 31st October, 2007 and it will be apposite to reproduce relevant part thereof which reads as under:

That the charge in the case was framed against the accused on 5.8.2004 and thereafter the case was adjourned for prosecution evidence to 11.10.2004, 13.6.2005 and then to 22.8.2005 when one PW was examined. Subsequently, the case was adjourned to 7.10.2005, 13.12.2005, 15.2.2006 and to 21.4.2006 when PW C Tirath Singh was present and he was given up being unnecessary.

Thereafter the case was adjourned to 15.5.206 for prosecution evidence and then to 4.7.2006 when accused Sukhdev Singh was not produced in the Court on that date and then to 14.7.2006 and the case was adjourned to 19.9.2006 for prosecution evidence. On 19.9.2006, no PW was present and case was adjourned to 2.11.2006 and then to 19.12.2006. On 19.12.2006 report regarding death of Kulwant Singh was not received and case was adjourned for awaiting his death report on 16.1.2007, 10.2.2007, 13.3.2007, 9.4.2007 and on 21.4.2007, his death report was received and proceedings against that accused was abated and case was adjourned to 23.5.2007 for prosecution evidence. On that date accused was not produced by the jail authorities and case was adjourned to 5.6.2007 when no PW was present and case was adjourned to 24.7.2007 and then 30.8.2007 and then to 26.9.2007 when PW Inspector Satnam Singh was present and examined partly and his further examination was deferred for want of case property.

On 29.10.2007 the case was received by transfer to this Court and on that date the accused was not produced in the Court by jail authorities and as such his production warrants were ordered to be issued for 27.11.2007 and the PWs were ordered to be summoned through SSP Jagraon for that date and notice to Incharge Judicial Malkhana was issued regarding production of case property.

It is therefore respectfully submitted that out of the 11 witnesses cited by the prosecution the prosecution has examined two witnesses while giving up one witness being unnecessary and thereby 8 witnesses remain to be examined by the prosecution. The status report is submitted accordingly for kind perusal of Hon''ble High Court.

As the report reveals, despite 15 opportunities given to the prosecution, only 2-3 witnesses have been produced and examined so far.

The petitioner is stated to be belonging to poor strata of society who has four minor children, a widowed mother and wife to feed.

It may be true that Section 37 of the NDPS Act imposes a statutory embargo against the petitioner''s release on bail as the alleged contraband recovered from his conscious possession is of a commercial quantity. However, the legislative wisdom behind Section 37 of the Act can not over-power the constitutional mandate contained in Article 21 of the Constitution of India. The petitioner is incarcerated only because of totally insensitive and callous attitude of the prosecution. He can not be kept in custody for an indefinite period.

It further appears that during the protracted trial, the petitioner''s co-accused, who was the main accused, namely, Kulwant Singh, escaped from the police custody and later on died. The petitioner alone is, thus, left to face the agony of unending trial.

Consequently, and for the reasons aforementioned, but without expressing any views on merits of the case, lest it should prejudice either of the parties, this petition is allowed and the petitioner is directed to be released on bail to the satisfaction of the learned CJM, Ludhiana.

Disposed of.