High Court of Punjab and HaryanaCRM-M/50447/2022allowed

Mohit @ Dp @ Mohit Kukreja v. State Of Punjab

2023-01-25Mr. Justice Jasgurpreet Singh Puri8 pages

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!! . ! 1'(- - - ! 2 ! <earned counsel for the petitioner has submitted that the petitioner

(in "##$%&&' of 2022) is in custody from 09.08.2021 and the learned counsel for the petitioner has submitted that the petitioner (in "##53554 of 2022) is in custody from 05.08.2021 which is almost 11⁄2 years. They have submitted that although the present petitions are the successive bail petitions but considering the peculiar facts and circumstances of the present case, they may be considered for the grant of regular bail. Both the learned counsels have raised the following arguments:- 1) Both the petitioners have faced incarceration for about 11⁄2 years and both the petitioners have been nominated on the basis of !-

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s of the co-accused and from the petitioner namely

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1learned trial Court but for the reasons best known to them, they did not choose to depose and come forward for deposing before the learned trial Court. They have submitted that in fact both the petitioners have been falsely implicated in the present case and the aforesaid conduct of the police officials would show that in fact the petitioners have been falsely implicated in the present case. Learned counsel further referred to a judgment of the Hon'ble Supreme Court in /())18671(+25 )(12 61)65)(+3(+ (4)1 % '/ to contend that repeated adjournments have been

granted by the learned trial Court and the delay has been caused by the prosecution itself and these aforesaid persons are the persons who are the official witnesses and because of whom the criminal law was set into motion and there was no justification for these officials to have absented themselves despite the fact that at the initial stage they were served and consequently the learned trial Court was constrained to issue repeated bailable warrants and non-bailable warrants against them. They further submitted that the net result was that the petitioners had to face incarceration for about 11⁄2 years for no fault of their own. On the other hand, " - * has submitted that it is correct that both the petitioners are in custody for about 11⁄2 years and till date no prosecution witness has been examined.

She further submitted that one of the petitioner namely Sandeep Singh @ Saini is involved in one more case under the NDPS Act and since the recovered quantity from the coaccused Amandeep Singh @ Tili falls within the category of commercial quantity and the prayer of the petitioner is hit by the bar contained under Section 37 2 ! I have heard the learned counsel for the parties. The period of custody of about 11⁄2 years is not disputed by the learned State counsel and it is also not in dispute that none of the witnesses have been examined till date despite the fact that the charges in the present case were framed on 22.12.2021 by the learned trial Court.

So far as the first argument raised by learned counsels for both the petitioners is concerned, there is no dispute that the names of both the petitioners were nominated on the basis of !-

s of the co-accused and

9 therefore in the absence of any other co-relating factor as a link evidence, the disclosure statements of the co-accused could not be per se admissible in evidence in view of the ratio of the aforesaid judgment of the Hon'ble Supreme Court in Tofan Singh's case (supra).

However, for the purpose of considering the prayer of both the petitioners in both the petitions especially in the light of Section 37 2 ! wherein a bar has been created, the conduct of the police officials has to be considered in the light of the facts and circumstances as stated by learned counsel for the petitioners and the photostat copies of the zimni orders which have been supplied during the course of proceedings. A perusal of the aforesaid orders would show that in fact these aforesaid two persons namely SI Baljeet Singh and ASI Gurpal Singh were repeatedly summoned for about six times by way of bailable warrants and two times by way of non-bailable warrants.

ASI Gurpal Singh was summoned right from the beginning whereas SI Baljeet Singh was summoned thereafter, but the fact remains that there is no justification as to why the Court was compelled to issue repeated warrants for their presence once the criminal law was itself set into motion by those police officials. During the course of arguments, a query was raised to learned State counsel as to what is the justification for the same, she was not able to justify the same.

The Hon'ble "

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$D After hearing the learned counsel for the parties, this Court while considering the prayer of the petitioner in the light of !)'2 !

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! !)'2 ! Therefore, in view of the aforesaid totality of facts and circumstances, this Court deems it fit and proper to grant the concession of regular bail to both the petitioners. Consequently, --.8 --

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