Punjab-Haryana High Court
Rajat vs State Of Haryana on 16 January, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:006055
CRM-M-723-2025 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
240 CRM-M-723-2025
DATE OF DECISION: 16.01.2025
RAJAT ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. G.S. Sawhney, Advocate for the petitioner(s).
Mr. B.S.Virk, Sr. DAG, Haryana.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 483 of BNS for
grant of regular bail in FIR No. 44 dated 05.03.2024 under Sections
20(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act,
1985 and (Section 29 of The NDPS Act and Section 201 IPC added
later on) registered at P.S. Station Kosli, District Rewari.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
‘To, SHO Police Station Kosli Jai Hind, Today
on 05.03.2024, myself SI along with PSI Anil Kumar, Head Const.
Naseeb no. 1089/Rewari, along with HC Bhupender Singh No.
1083/Rewari, SI Vikas No.31/Rewari on an official vehicle PCR-16
bearing number HR-36GV-9417 driver thereof was Jitendra HKRN
were present near tehsil Kosli for patrolling and investigation. In
the meanwhile, special informer came to myself SI and informed
that two persons are traveling in a vehicle bearing no. HR-90A-
9434 make Maruti Suzuki Ertiga painted in white colour and they
are planning to sell intoxicating substance to somecne, who are1 of 9
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currently standing on the side of the road at Kosli by-pass. If raid
is conducted immediately, then they could be nabbed along with
the intoxicating substances. Considering this information as true,
informed the fellow employees about the information, prepared
notice under section 42 of the NOPS ACT, and sent the same to the
police station by hand through Const. Vikash no: 31 to get it
recorded in the Rapat Roznamcha and to inform about the same to
higher officials. Thereafter, myself SI along with the team, reached
at the place of occurrence as disclosed by the secret informer and
two persons were found sitting inside the vehicle bearing number
HR-90A-9434 while parking the vehicle on the side of the road at
Kosli by-pass turn, who on seeing the police party, tried to run
away along with their vehicle, then myself SI with the help of
fellow officials arrested both the persons along with their vehicle,
and asked for their names and addresses, the driver of the vehicle
disclosed his name as Rajat son of Dalbir resident of Khatkad
Patti, Nagura police station, Aleva, District Jind. And when asked
for the name and address of the person sitting on the seat next to
the driver’s side seat, he disclosed his name as Kailash Dalal son
of Vijay Singh, resident of Jagram Patti Nagura, Police
stationAleva district Jind, who was keeping a white colored plastic
polythene in his ap. Separate notices under section 50 NDPS ACT
were given to the above two persons. Both of the accused Rajat
and Kailash Dalal were informed that we are having solid
information that you have some intoxicating substances in your
possession. And you both have a legal right to get yourself and
your vehicle searched through a Gazetted Officer or through some
Duty Magistrate at the spot or we can produce you before them.
Accused Rajat and Kailash Dalal got prepared their reply to the
notice under section 50 NDPS Act separately that we want to get
ourselves and our vehicle searched through a Gazetted Officer
Magistrate after calling them or some Duty the spot. Thereafter,
the above said accused Rajat, Kailash Dalal and other witnesses
appended their respective signatures over the notice, after which,
the appointed Duty Magistrate SH. Jai Singh HPS Deputy
Superintendent of Police Kosli was contacted on his mobile no.
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7056666102 through the mobile no. 9466678444 of myself SI and
informed him about the situation at the spot and requested him to
come to the spot. After waiting, Sh. Jai Singh HPS Deputy
Superintendent of Police Kosli arrived at the spot and at the same
time, Const. Vikash no. 31 reached at the spot after giving notice
under section 42 of NDPS Act at police station Kosli. Duty
Magistrate Sahib, after knowing the circumstances, conducted my
personal search and prepared the memo of search and myself SI
was not found to be in possession of any intoxicant or illegal
object. I along with above said accused Rajat and Kailash Dalal
and other witnesses appended our signatures over the above said
memo. There are many people present at the spot who were asked
to become a public witness, then Omprakash son of Dulichand
resident of street Mohalla Kosli, expressed his desire to become a
public witness on his own free will, after that, as per the orders
issued by the Duty Magistrate Jai Singh HPS Deputy
Superintendent of Police Kosli, myself SI got conducted the
personal search of above said accused Rajat and Kailash Dalal
and their vehicle as per rules in the presence of the above said
witnesses, during the search, intoxicating substance Sulfa
(charas/Hashish), was found in a plastic polythene colored yellow
lying in the lap of the above mentioned accused Kailash Dalal.
When accused Rajat and Kailash Dalal were asked about this, they
told that this intoxicating substance is Sulfa (charas/Hashish),
which was weighed with an electronic weighing machine and the
total weight of Sulfa (charas/Hashish) along with plastic polythene
came out to be 1 Kilogram and 100 grams. Whose cloth parcel was
prepared, the parcel was stamped with 3 stamps bearing
impression AK and the stamp after use was handed over to witness
HC Naseeb No: 1089/Rewari for sample. Duty Magistrate Sahib
appended his one stamp bearing impression NS over the parcel
and the stamp after use was kept by him. Cloth Parcel containing
Sulfa (Charas/Hashish) and vehicle bearing number HR-90A-9434
were taken into police custody vide a separate memo of recovery
as evidence. Memo and cloth parcel containing Sulfa
(Charas/Hashish) were attested by Duty Magistrate Sahib. Memo
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was signed by the accused Rajat and Kailash Dalal and witness
Om Parkash. Above said accused Rajat and Kailash Dalal, have
committed the offences under section 20b (ii) C 61-85 of NDPS Act
by keeping total 1 Kilcgram and 100 grams of Sulfa
(Charas/Hashish) intoxicating substance in their possession.
Therefore, the writing is being sent to the police station by hand
through Const. Vikash no: registration of FIR. Special report of the
FIR be issued in the service of higher officials and Ilaga
Magistrate Sahib rules. per as After registration of FIR, its number
be informed and other competent IO be sent at the spot. Today
within the area of By-pass Kosli Turn Sd/- Ramchandra SI Police
Station Kosli, Dated 05.03.2024.’
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been falsely implicated in the present case as no recovery
has been effected from him rather he was not present in the alleged
vehicle. He contends that the contraband involved in the instant FIR is
marginally over and above the commercial quantity i.e. 1100 grams of
Charas. He further argued that the investigation has already been
completed and the challan has been presented to Court on 01.06.2024 and
no useful purpose would be served by detaining him behind the bar as the
conclusion of trial would take sufficient long time, therefore, he be
admitted to regular bail. He has further argued that the antecedents of the
petitioner are clean, meaning thereby, he is not habitual offender.
On behalf of the State
On the other hand, learned State Counsel appearing on
advance notice, accepts notice on behalf of respondent-State and has filed
the custody certificate of the petitioner, which is taken on record.
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According to which, the petitioner is behind bars for 10 months and 10
days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that the
petitioner along with co-accused Kailash was apprehended on spot and 1
kg. 100 gram Charas was recovered from them which is a commercial
quantity but is not in a position to controvert the submissions made by
learned counsel for the petitioner.
4. Analysis
Be that as it may, considering the custody period i.e.10
months and 10 days for which the petitioner has suffered incarceration;
the contraband i.e. 1100 grams of Charas, is marginally over and above
the commercial quantity in addition to the fact that antecedents of the
petitioner are clean, investigation is complete, challan stands presented
to Court on 01.06.2024, charges have been framed on 07.12.2024 and
out of total 23 prosecution witnesses, none has been examined so far,
which is suffice for this Court to infer that the conclusion of trial will
take a long time for which the petitioner cannot be detained behind the
bars for an indefinite period.
Taking into consideration the following orders passed by the
Coordinate Benches of this Court wherein the recovery from the
accused was marginally over and above the commercial quantity for
the respective contraband in each case, the Courts have taken a lenient
view while granting bail to the accused therein i.e. Sukhchain Singh @
Manga Versus State of Punjab, CRM-M-7857-2022 decided on
04.04.2022, Pardeep Singh versus State of Punjab, CRM-M-46244-
2022 decided on 19.01.2023, Hari Yadav @ Haiya versus State of
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Punjab (CRM-M-37645-2021)’ decided on 11.11.2022, ‘Jang Kanwar
Versus State of Punjab (CRM-M-53415-2021)’ decided on 19.01.2022,
‘Shankar Prashad Chanau Versus The State of Punjab, CRM-M-24090-
2020, decided on 27.08.2020, Gurpreet Kumar Versus State of Punjab,
CRM-M-17021-2021, decided on 31.08.2021, Salim Versus State of
Haryana, CRM-M-42436-2020, decided on 24.02.2021, Gagandeep
Versus State of Punjab, CRM-M-3055-2021, decided on 27.01.2021,
Gurpreet Gopi Versus State of Punjab, CRM-M-41039-2019, Singh
decided on 26.02.2020, Dalbara Singh Versus State of Punjab, CRM-
M-47880-2022 decided on 16.01.2023′, and Vivek Watts versus State
of Punjab, CRM-M-13791-2022 decided on 15.02.2023.
Reliance can be placed upon the judgment of the Apex Court
rendered in “Dataram versus State of Uttar Pradesh and another“,
2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of
bail is a general rule and putting persons in jail or in prison or in
correction home is an exception. Relevant paras of the said judgment is
reproduced as under:-
“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
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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 first-time 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
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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 Re-Inhuman
Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5)
Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658
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. 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. King-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 age-old 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.”
Therefore, to elucidate further, this Court is conscious of the
fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in “Hussainara Khatoon
and ors (IV) v. Home Secretary, State of Bihar, Patna“, (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction period
of the under-trials should be as short as possible keeping in view the
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nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence, reasonable apprehension of
tampering with the witness or apprehension of threat to the complainant.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail on his furnishing bail
and surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
16.01.2025
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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