Baljinder Singh Alias Rambo v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Date of decision : 14.10.2024 BALJINDER SINGH @ RAMBO ... Appellant

Versus

STATE OF PUNJAB .. Respondents CORAM : HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL HON'BLE MS. JUSTICE LAPITA BANERJI

Present:

Ms. Medha Kaushal, Advocate for the applicant/appellant (s).

Mr. H.S. Sullar, Senior DAG, Punjab.

**** Anupinder Singh Grewal, J. (Oral) CRM-30711-2024 This application has been preferred for condonation of delay of 33 days.

2.

Learned counsel for the applicant submits that the delay is neither intentional nor deliberate. The appellant is in custody and the delay of 33 days had occurred as the appellant is under judicial custody due to which it was difficult for him to engage the counsel and handover his documents within the prescribed 30 days.

3.

Issue notice to the non-applicant.

4.

At the asking of the Court, Mr. H.S. Sullar, Senior DAG, Punjab accepts notice on behalf of the non-applicant and submits that applicant has not made any sufficient cause for condoning the delay. 5.

Heard.

-26.

The applicant is an accused under the UAPA, Explosive Substances Act and Arms Act. He has been in custody for over 2 years, 4 months and 17 days. The delay in preferring the appeal does not appear to be intentional or deliberate. It has been held by the Division Bench of the Bombay High Court in the case of Faizal Hasamali Mirza Vs. State of Maharashtra and another, 2023 SCC (Online) Bom 1936, that the period of limitation of 30 days and barring from entertaining the appeal after a period of 90 days prescribed under Section 21(5) of the National Investigation Agency Act, 2008 would be directory in nature and not mandatory as the right to appeal is one of the essential components of Article 21 of the Constitution of India which guarantees protection of life and personal liberty.

It has been held that in case the delay is not condoned then it would deprive the undertrial the right of appeal which is provided by the Statute which impinges on the life and liberty of the undertrial as enshrined in the Constitution of India. It was held as under:- "(i) that the Appellate Courts have the power to condone delay beyond the 90 days period, despite the language of the 2nd proviso to Section 21 (5) of the NIA Act and that this can be done by virtue of Section 5 of the Limitation Act, 1963, the applicability of which is not excluded under the provisions of the NIA Act.

Thus, an application seeking to condone delay beyond 90 days in filing an appeal against the judgment, sentence, order, not being an interlocutory order, passed by a Special Court is maintainable, on sufficient cause being shown; (ii) that the word 'shall' in the 2nd proviso to sub-section (5) of Section 21, be read down, to read as 'may', and hence, directory in nature." 7.

It would be in the interest of justice, if the delay is condoned and appeal is heard and decided on merits. Consequently, the application is allowed and delay of 33 days in preferring the appeal is condoned.

-3MAIN CASE The appellant has challenged the order dated 27.05.2024 passed by the Additional Sessions Judge whereby his bail application in FIR No.236 dated 09.05.2022, registered under Section 307 IPC, Section 16, 18, 18-B, 19, 20 & 23 of the Unlawful Activities (Prevention) Act, 1967 (Amendment in 2012) [for short,' UAPA'], Sections 3 and 6 of Explosive Substances Act, 1908 (Sections 212, 216, 120-B IPC), Sections 25, 27, 54, 59 of the Arms Act at Police Station Sohana, District SAS Nagar, Mohali, has been dismissed. 2.

Learned counsel for the appellant submits that the appellant was nominated on the disclosure statement of co-accused Jagdeep Singh @ Jaggi Kang. He was alleged to have suffered a disclosure statement dated 18.05.2022 that he is a friend of co-accused Nishan Singh who told him to pick up a bag carrying AK-47 Rifle. As per the alleged disclosure statement, an empty bag was recovered on 19.05.2022 from him. She also submits that co-accused namely Kanwarjeet Singh @ Kanwar Bath, Anantdeep Singh @ Sonu, Baljit Kaur @ Sukhi and Jagdeep Singh @ Jaggi Kang have been granted concession of regular bail by this Court in CRA-D-900-2023 on 06.08.2024, CRA-D-665-2023 on 18.04.2024, CRA-D-471-2023 on 18.12.2023 in CRA-D-1346-2023 on 11.09.2024 respectively.

3.

Learned counsel for the appellant in support of his submissions, has placed reliance upon the judgments of the Supreme Court in the cases of Union of India versus K.A. Najeeb, (2021) 3 SCC 713 and Shoma Kanti Sen versus State of Maharashtra and another, 2024 SCC Online SC 498, wherein it has been held that long custody by itself would entitle the accused under UAPA to grant of bail by invoking Article 21 of the Constitution of India. She has also relied

-4upon the judgments of the Supreme Court in the cases of Vernon versus The State of Maharashtra and another, 2023 SCC Online 885, Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari versus State of Uttar Pradesh, bearing Criminal Appeal No.2790 of 2024, decided on 18.07.2024 and Javed Gulam Nabi Shaikh versus State of Maharashtra, another, bearing Criminal Appeal No.2787 of 2024, decided on 03.07.2024.

4.

Custody certificate and short reply by way of an affidavit of DSP, City-2, SAS Nagar filed by the learned State counsel are taken on record. Custody certificate indicates that the appellant has been in custody for 02 years, 04 months and 17 days. Learned counsel for the State, while relying upon the reply, submits that the allegations against the appellant are very serious as he picked up a bag carrying AK-47 Rifle and cartridges as per the directions of co-accused and buried the same on bank of Band Rohi situated near the Cremation ground Road, Patti. He further submits that the appeal of the appellant is devoid of merits and he is not entitled to the concession of regular bail. He also submits that charges have not been framed yet.

5.

Heard.

6.

The allegations against the appellant are that he is alleged to have picked up a bag carrying AK-47 Rifle and cartridges. Recovery of a black bag had been effected from him. There was allegedly an attack on the Intelligence Bhawan, Sector 76, Mohali, Punjab but no one was injured in the occurrence. The appellant has been in custody for over 2 years, 04 months and 17 days. 7.

Article 21 of the Constitution of India enshrines the Fundamental Right to protection of life and liberty which also includes the right to speedy trial, which is sacrosanct. It has been held by the Supreme Court in a catena of

-5judgments that long custody by itself would entitle the accused under UAPA to the grant of bail by invoking Article 21 of the Constitution of India. The appellant is in custody for about 02 years and 03 months. The Constitutional Court would like to prevent a situation where the lengthy and arduous process of trial, becomes a punishment in itself. Reference can be made to the judgment of the Supreme Court in the case of Union of India versus K.A. Najeeb (supra) wherein it has been held that long custody would be an essential factor while granting bail under UAPA. Article 21 of the Constitution of India provides right to speedy trial and long period of incarceration would be a good ground to grant bail to an under-trial for an offence punishable under UAPA.

It has also been held that the embargo under Section 43-D of UAPA would not negate the powers of the Court to give effect to Article 21 of the Constitution of India. The relevant extract of the judgement is reproduced hereunder:- "It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Whereas at commencement of proceedings, the Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

-6tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc." 8.

In the case of Shoma Kanti Sen (supra), the Supreme Court has held that generally pre-conviction detention at the investigation stage is necessary to maintain purity in the course of trial and also to prevent an accused from being a fugitive from justice or to prevent further commission of an offence. Once it is apparent that a timely trial is not possible and the accused has suffered incarceration for a significant period of time, the Court would ordinarily be obligated to enlarge them on bail as any form of deprival of liberty must be proportionate to the facts of the case and also follow a just and fair procedure. A balance must be made between the prosecution's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously, the respondent's rights guaranteed under Part-III of the Constitution.

The relevant extract thereof is reproduced hereunder:- "This Court has already accepted right of an accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb (supra), and in that judgment, long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bailrestricting provision of Section 43D (5) of the 1967 Act. Preconviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused.

Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law broadly on these reasonings.

-7India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post-chargesheet stage."

9.

The Supreme Court in the case of Vernon versus The State of Maharashtra and another (supra) has held that serious allegations against accused by itself cannot be a reason to deny bail to the accused. The relevant extract thereof is reproduced hereunder:- "In the case of Zahoor Ahmad Shah Watali (supra) reference was made to the judgment of Jayendra Saraswathi Swamigal -vs- State of Tamil Nadu [(2005) 2 SCC 13) in which, citing two earlier decisions of this court in the cases of State -vs- Jagjit Singh (AIR 1962 SC 253) and Gurcharan Singh -vs- State of (UT of Delhi) [(1978) 1 SCC 118), the factors for granting bail under normal circumstances were discussed.

It was held that the nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tempered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants' case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them.

While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage.

-8the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act." 10.

In the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari versus State of Uttar Pradesh(supra), it has been held that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A Constitutional Court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law, of which liberty is an intrinsic part.

The relevant extract thereof is reproduced hereunder:- "In Gurwinder Singh (supra) on which reliance has been placed by the respondent, a two Judge Bench of this Court distinguished K.A. Najeeb (supra) holding that the appellant in K.A. Najeeb (supra) was in custody for five years and that the trial 25 of the appellant in that case was severed from the other co-accused whose trial had concluded whereupon they were sentenced to imprisonment of eight years; but in Gurwinder Singh, the trial was already underway and that twenty two witnesses including the protected witnesses have been examined. It was in that context, the two Judge Bench of this Court in Gurwinder Singh observed that mere delay in trial pertaining to grave offences cannot be used as a ground to grant bail.

This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the

-9accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us. Xxxxxx continued incarceration of the appellant cannot be justified. " 11.

In the case of Javed Gulam Nabi Shaikh versus State of Maharashtra, another (supra), the Supreme Court has observed that criminals are not born but made. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India. Moreover, the purpose of bail is only to secure the attendance of the accused at the trial and bail is not to be withheld as a form of punishment. The relevant extract thereof is reproduced hereunder:- "13. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter the court reemphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option:

"The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed

-10in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial." 14.

In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023 INSC 311, this Court observed as under:

"21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State reported in 1993 Cri LJ 3242, as "a radical transformation" whereby the prisoner loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.

23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal" (also see Donald

-11Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily." Xxxxxxx 18.

Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations." 12.

In view of the above especially when the appellant is in custody for 02 years, 04 months, 17 days and four co-accused have been granted concession of regular bail and the end of the trial is not in sight as the charges have not been framed yet, it would be in the interest of justice, if the appeal is allowed and the impugned order dated 27.05.2024 is set aside. The appellant is ordered to be released on regular bail subject to following conditions besides furnishing of requisite bail bonds to the satisfaction of the trial Court/Duty Magistrate concerned:- (i) He shall furnish bond of ₹1 lakh with two sureties of ₹1 lakh each;

-12- (ii) He shall surrender his passport in the Trial Court, if he is holding the same and is still with him;

(iii) He shall appear before Trial Court on each and every date unless exempted by Court;

(iv) He shall appear before the Investigating Officer as and when summoned;

v) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or who is cited as witness;

vi) He shall not involve in any criminal activity and if during the pendency of trial, he is found involved in commission of any offence punishable under UAPA, the prosecuting agency would be free to approach this court for recalling this order and cancellation of his bail;

vii) He shall not sell, transfer or in any other manner create third party right over his immovable property;

viii) He shall furnish an undertaking to the effect that in case of their absence, Trial Court may proceed with trial and he shall not claim re-examination of any witness.

ix) At the time of release of the appellant, the concerned SHO shall be informed. He shall appear before the SHO on every alternate Monday till the conclusion of the trial.

13.

In the event there is a breach of any of the abovementioned conditions, or of the conditions to be imposed by the Trial Court independently, it would be open to the prosecution to seek cancellation of the bail of the defaulting appellant without any further reference to this Court. Similarly, if the appellant seeks to threaten or otherwise influence any of the witnesses, whether directly or indirectly, then also the prosecution shall be at liberty to seek cancellation of bail of the concerned appellant by making appropriate application before the Trial Court.

-1314.

Needless to observe that the observations made hereinabove are only for the determination of appeal seeking bail and same shall have no bearing on the merits of the trial pending before the Special Judge. 15.

Pending application, if any, shall stand disposed of accordingly. (ANUPINDER SINGH GREWAL) JUDGE (LAPITA BANERJI) 14.10.2024 JUDGE Swarnjits Whether speaking/reasoned :

Yes/No Whether reportable :

Yes/No