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2008 DIGILAW 1270 (PNJ)

Bagicha Singh v. State Of Punjab

2008-07-28

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This appeal is directed against the order dated 14.10.1999, rendered by the court of Addl. Sessions Judge, Muktsar, vide which it imposed penalty of Rs. 50,000/- upon Bagicha Singh, appellant (surety). 2. Bagicha Singh, appellant stood surety for Gurmit Singh, in case FIR No. 152 dated 20.11.1995, under Section 15 of the Narcotic Drugs & Psychotropic Substances At, 1985, Police Station Sadar Malout, titled as State v. Gurmit Singh, in the sum of Rs. 50,000/-, undertaking to produce him (accused), on each and every date of hearing, during the course of trial, failing which to pay the amount of forfeited surety bonds. 3. The accused, absented from the Court. Ultimately, he was declared Proclaimed Offender. His personal bond and surety bond, stood forfeited to the State. Notice was given to Bagicha Singh, surety, to show-cause, as to why, the amount of forfeited surety bond, be not recovered, from him. He was duly served, but did not come present on 14.10.1999. Ultimately, the order of even date, imposing a penalty of Rs. 50,000/-, was passed. Feeling aggrieved, the instant appeal was filed by the appellant. 4. I have heard the learned Counsel for the parties, and have gone through the record of the case, carefully. 5. The Counsel for the appellant, at the very outset, submitted that no reasonable opportunity was afforded to the surety, to put forward his version, and explain the circumstances, under which he could not appear in the Court, for the date, he was served, in pursuance of the notice, under Section 446 Cr.P.C., and why he was unable to produce the accused. He further submitted that the surety had no scent that the accused will jump the bail, and abscond. He further submitted that the surety was not in connivance with the accused, so as to facilitate his abscondance, from the trial. He further submitted that the penalty imposed upon the surety, being highly excessive, be remitted. 6. On the other hand, the Counsel for the respondent, submitted that full opportunity was given to the surety, to appear in person, and explain the circumstances, under which, he was unable to produce the accused, but he preferred to remain absent, despite service. He further submitted that it, therefore, could not be said that he was condemned unheard. 6. On the other hand, the Counsel for the respondent, submitted that full opportunity was given to the surety, to appear in person, and explain the circumstances, under which, he was unable to produce the accused, but he preferred to remain absent, despite service. He further submitted that it, therefore, could not be said that he was condemned unheard. He further submitted that since the accused, as per the record, has not been arrested, it could not be said that the penalty imposed upon the surety, was, in any way, excessive. He further submitted that, no ground for remission of the same, was made out. 7. Coming to the first contention of the Counsel for the appellant, it may be stated here, mat reasonable opportunity was afforded to the surety to show-cause, as to why, the amount of forfeited surety bond, be not imposed recovered from him. In case, he wanted to put forward his version, and explain the circumstances, as to why, he was unable to produce the accused, he could appear in the Court, and file reply to the notice, under Section 446 of the Cr.P.C. He preferred to remain absent. Opportunity was afforded to the surety, but he did not avail of the same, of his own accord, by remaining absent. Under these circumstances, it could not be said that he was condemned unheard. The first submission of the Counsel for the appellant, thus, being without merit, must fail, and the same stands rejected. 8. Coming to the second contention of the Counsel for the appellant, it may be stated Here that there is some merit therein, as would be discussed hereinafter. No doubt, the appellant could not produce the accused. However, there is no material, on record, to show that he connived with the accused, so as to facilitate his abscondance, from the trial. There is also no material, on the record, to show that he had scent that the accused, will jump the bail. Under these circumstances, it is a fit case, in which the amount of penalty should be reduced to some extent. In Mohammed Kunju and Anr. v. State of Karnataka, the accused absented, from the trial. He went to foreign country. He was declared absconder. Penalty of Rs. 50,000/- each, on two sureties of the accused, was imposed, by the trial Court. The order was upheld by the High Court. In Mohammed Kunju and Anr. v. State of Karnataka, the accused absented, from the trial. He went to foreign country. He was declared absconder. Penalty of Rs. 50,000/- each, on two sureties of the accused, was imposed, by the trial Court. The order was upheld by the High Court. Ultimately, in appeal, the Apex Court held that since there was no allegation, that the surety connived with the accused, so as to facilitate his abscondance, nor there was anything, on the record, that he had even a remote scent that the accused will jump the bail, the amount of penalty deserved to be reduced. Accordingly, the amount of penalty, was reduced to Rs. 5,000/-. Under these circumstances, the ends of justice shall be met, if the penalty of Rs. 50,000/- is reduced to Rs. 30,000/-. The contention of the Counsel for the appellant, to this extent, carries substance, and stands accepted. 9. For the reasons recorded above, the appeal is partly accepted. The amount of penalty of Rs. 50,000/-, imposed upon the appellant, by the trial Court, vide the order impugned, is reduced to Rs. 30,000/-. The trial Court/the Court of Chief Judicial Magistrate, Muktsar, is directed to take further steps, in accordance with the provisions of law, for the recovery of Rs. 30,000/-, the reduced amount of penalty.