Gurbachan Kaur Alias Bachan Kaur v. State Of Punjab
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5 "SHO, PS Kotwali Kapurthala, Jai Hind, Today myself ASI alognwith ASI/CR Amarjeet Singh No.1239/KPT, ASI/LR Jarnail Singh No. 1419/KPT, L/S CT Harjit Kaur No.328/KPT, Sr.Constable Navjeet Singh No. 242/KPT alongwith Laptop, Printer and investigation kit on search duty Govt vehicle bearing No.PB2652BG25519 driven by ASI/LR Rupinder Singh No.975/KPT on CASO Road were going to Nawan Pind Bhathe when the police party reached near Peer Babe di Jagah than a Women aged about 50260 years come from left side street. After looking at
the police party, she had thrown one black colour polythene she was carrying in her hand on the grass in the street on which myself ASI alongwith L/S/CT Harjeet Kaur No.328/KPT nabbed her on the basis of suspicion after stopping the vehicle. After introducing myself and my fellow officials, I asked her name and address and she told her name Gurbachan Kaur W/o Resham Singh, R/o Nawan Pind Bhathe, PS Kotwali Kapurthala. Myself ASI in the presence of L/S/CT Harjeet Kaur No.328/KРT asked the above Gurbachan Kaur about the black colour polythene thrown by her that what is in the polythene? She was not able to give any satisfactory reply.
Before checking the black colour polythene thrown in the grass, myself ASI tried to join public/independent witness but everybody shows their inability and nobody got ready to join police party and myself ASI in the presence of fellow officials, checked the black colour polythene thrown by the above Gurbachan Kaur after picking up the same and intoxicant substance was recovered from the same. Myself ASI after taking the weighing machine from the investigation kit, weighed it and on weighing, it comes to 150 grams of intoxicant substance. After keeping the recovered intoxicant substance in transparent polythene in plastic box, the parcel was prepared and sealed the said parcel with my stamp AK. Sample stamp is prepared separately.
The recovered intoxicant substance was taken in police possession vide separate recovery memo, the written information regarding the same is sent to senior officer. After using the seal, handed over to ASI/LR Jarnail Singh No.1419/KPT. The accused Gurbachan Kaur by keeping 150 grams intoxicant substance has committed the offence under section 22/61/85 of NDPS Act. After preparing the ruga, it is sent to Police Station through S/CT Navneet Singh No.242/KPT for registration of FIR. After registration of FIR, the no. be informed. The control room be informed through wireless. Special reports be prepared and sent to senior officers. Myself ASI alongwith fellow officials busy at the spot and investigating."
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5 "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 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 first2time 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 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 Re2Inhuman Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC
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.
8 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. King2 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 age2old 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. 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."
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