ANKUSH KUMAR @ SONU Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The travel of mankind, in its existential terms, have been from "Might is Right" to a "Right is Might". In his early existence, man had absolute freedom to do whatever it could, as per his strength and power. However, the craving of human beings to organise themselves into an organised Society led the individual to being ready to cede some of his freedom in favour of the interest of the Society, despite having the power and might to fulfil that freedom. Therefore, the freedom of individual was limited to some extent; for maintaining the Society as an organisation. With the passage of the time, Society metamorphosed itself into a more regulating body, which in its modern Avtar, is called the State. With the change of the character and authority of the social organisation, the State also started asserting more and more power to regulate the individual freedom. Hence, the freedom of the individual also metamorphosed into a regulated freedom, called liberty. However, to ensure that even this liberty is not further encroached upon or ruthlessly trampled, the man, in more civilized societies, has created an instrumentality, called the Constitution, the basic document of Governance, providing for liberties of individuals and for regulation by State. Therefore, in the modern State, individual is entitled to only those rights/ liberties which are permitted to him by the Constitution, as regulated by the might of the State. The 'right' of the individual, therefore, is restricted to only that 'might' of the individual which is permitted by the State. However, there are certain rights, which are so fundamental to the human existence that, even if the individual so desired, these cannot be permitted to be ceded by him. Hence, in the modern constitutionalism, despite the State being mighty entity, individuals also have been given certain basic rights which cannot be taken away by the State. But the State being State, sometimes for right reasons and sometimes for presumably right reasons, tries to encroach upon even those basic and inviolable rights of an individual. Hence, the tussle between the 'rights' of the individual and the 'might' of the State continues. The jurisprudence is grappling with issue of finding the right balance between individual 'right' and the 'might'/'interest' of the State.

(2.) Under Indian Constitution as well, the persons/citizens have been given certain rights which are fundamental to the human existence. Out of those, right to life and liberty guaranteed by Article 21 of the Constitution of India is one such right, which is considered to be of such immense importance that it cannot be suspended even for the sake of or under the other provisions of the Constitution itself. Still effort is made by the State to regulate even this right of the individual citizen, in the name of the 'interest of Society' or the existence of the State. One such aspect of such Regulation of right of the individual to life and liberty is; providing for the person alleged to have committed an offence to be kept in custody; and the prohibitive conditions for his release on bail. Hence, there has been continuous debate on the right of individual not to be kept in custody during pendency of the trial and the privilege of the State to keep him in custody and to prescribe rigorous conditions for his release on bail, if at all he can be. The present case also involves the same struggle between the individual's right to life and liberty and the might of the State, as reflected in the conditions; prescribed under Section 37 of Narcotic and Psychotropic Substances Act for release on bail.

(3.) The facts of the present case are that the FIR No.35 dated 22.03.2017 was registered under Sections 22 of Narcotic Drugs and Psychotropic Substances Act at Police Station Kartarpur, Jalandhar (Punjab). The allegation as contained in the FIR against the petitioner was that on 22.03.2017, ASI Gurnam Singh of Police Station Kartarpur, Jalandhar, along with other police officials was present at Bholath Road; near Maliyan Turning of the road; in the area of Kartarpur; in connection with patrol duty and checking for the bad elements. Then the petitioner was, allegedly; seen by the police party coming from the side of Maliyan; on foot. On seeing the police party, the petitioner tried to turn back. This led the Police to have suspicion upon the petitioner. Therefore, the petitioner was apprehended by the Police Party. On being apprehended, the petitioner was told that the above said ASI suspected that the petitioner was carrying some intoxicating substance and that he was required to be searched. Therefore, the petitioner was, allegedly, given an option; whether he wanted to be searched in presence of some gazetted officer or Magistrate. The petitioner is alleged to have reposed faith in the above said ASI Gurnam Singh and expressed no objection to his search by the Police party present on the spot. The Police, allegedly; made effort to join some independent person in the process but none came forward. Therefore, the search of the person of the petitioner was conducted by the said ASI Gurnam Singh. During the search, a plastic container containing 300 grams of intoxicating powder was allegedly; recovered from the back pocket of pant/ lower worn by the petitioner. The same was saealed into parcel and taken into possession. Accordingly, the above said FIR was registered on the basis of writing sent to the Police Sation by the abovesaid ASI Gurnam Singh. As per the allegations, the sample of the seized material was sent to Chemical Examiner and as per the report of the Chemical Examiner, Alprazolam was found in the sample. Accordingly, the petitioner was kept in custody.