Punjab-Haryana High Court
Dinesh Kumar vs State Of Haryana on 13 December, 2024
Author: Kirti Singh
Bench: Kirti Singh
Neutral Citation No:=2024:PHHC:167043
CRM-M-10912-2023 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.211 CRM-M-10912-2023 (O&M)
Date of decision : 13.12.2024
Dinesh Kumar ..... Petitioner
VERSUS
State of Haryana ..... Respondent
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. N.K. Ganga, Advocate for the petitioner.
Mr. Gaurav Bansal, DAG, Haryana.
*****
KIRTI SINGH, J. (Oral)
CRM-48903-2024
1 This application has been filed for placing on record the copy of
the judgment of acquittal passed by the learned Addl. Sessions Judge, Sirsa
in case FIR No.44/2012 as Annexure P6 for proper adjudication of the case.
2 The application is allowed as prayed for.
Main case
3 The jurisdiction of this Court under Section 439 Cr.P.C. has
been invoked for grant of regular bail to the petitioner in case FIR No.125
dated 11.06.2020, under Sections 17/27-A/61/85 of NDPS Act, 1985,
registered at Police Station Nathusari Chopta, District Sirsa.
4. The translated version of the FIR is reproduced below:-
“To SHO, PS Nathu Sari Chopta. Jai Hind. Today I SI
present with ASI then a secret information was received from
CIA Staff, Sirsa thatDinesh Kumar S/o Mangi Lal R/o Ward No.1 of 11
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6, Mandir Chowk Turkia, Distt. Mansaur, M.P. is doing the
work of supply of opium and today in his vehicle no. MP-14CB
3749 mark Ertiga white colouris coming from Mansaur with
opium for supply to Chopta. Further, if nakabandhi is laid on
the fefana Road, Seme nala, then he can be apprehended with
opium. The information was true and believable and notice u/s
42 of NDPS Act was written and sent to Sj. Jagdish Kumar
Khajla, D.S.P, Ellanabad through EHC Hansraj 982. Then I
laid a nakabandhi at fefana Road near Semnala, village Jamal
with HC Sandeep Kumar 772, HC Vinod Kumar 1207, CT Sunil
Kumar 896, Const. Sunil Kumar 976 alongwith a laptop and a
printer ingovt vehicle no. HR 24X 4306 which was driven by
EHC Harish Kumar 480. The nakabandhi was started and
fefana Road. After sometime a white colour car no. MP-14CB
3749 was seen coming from nohar side. Then I SI gave a signal
to stop the car. The driver tried to turn back his vehicle to
Nohar side. Then the govt. vehiclewas used to block his vehicle.
After overpowering him he was asked his name to which he
disclosed his name as Dinesh Kumar S/o Mangi Lal R/o Ward
No. 6, Mandir Chowk Turkia, Distt. Mansaur, M.P. Then upon
checking the car it was found to be vehicle no. MP-14CB 3749
mark Ertiga white colour. Then I SI upon having a narcotic
substance in the possession of driver namely Dinesh Kumar S/o
Mangi Lal R/o Ward No. 6, Mandir Chowk Turkia, Distt.
Mansaur, M.P. gave a notice of search under Section 50 of
NDPS Actthat SI Satbir Singh 488/Sirsa is posted at CIA Staff
and that you namely Dinesh Kumar S/o Mangi Lal R/o Ward
No. 6, Mandir Chowk Turkia, Distt. Mansaur, M.P. do hereby
inform you vide this notice that I have a suspicion that you and
your vehicle no. MP- 14CB 3749 mark Ertiga white colour
contains some narcotic substance and for this purpose you and
your vehicle is required tobe searched. You have a legal right
to get yourself and your car searched from a Gazetted officer or2 of 11
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Magistrate whom can be called at the spot or you along with
your car can be produced before them.In written reply to notice
under Section 50 of NDPS Act the driver namely Dinesh Kumar
S/o Mangi Lal R/o Word No. 6, Mandir Chowk Turkia, Distt.
Mansaur, M.P. got written that he Dinesh Kumar S/o Mangi
Lal R/o Ward No. 6, Mandir Chowk Turkia, Distt. Mansaur,
M.P. has understood the notice served by me and that he wants
the search of himself and of his car bearing no. MP-14CB 3749
mark Ertiga white colour from some Gazetted Officer. For
thispurpose some Gazetted Oflicer may be called at the spot.
After printing the notice and its reply the same was signed by
accused Dinesh Kumar and attested by witnesses. Then ISI
from my personal mobile number called Sh. Jagdish Kumar
Kajla, D.S.P. Ellanabad on his mobile no. 88140-11604 and
apprised him of the facts with a request to reach at the spot at
around 1:00 PM. Thereafter Sh. Jagdish Kumar Kajla, D.S.P.
Ellanabad reached at the spot along with his staff in his govt.
vehicle at around 1:40 PM. I tried to associate independent
witnesses by stopping 4-5 persons but all of them conveyed
their inability to become witnesses. As per the instructions
given by Sh. Jagdish Kumar Kajla, D.S.P., Ellenabad I SI
searched the body of Dinesh Kumar S/o Mangi Lal R/o Ward
No. 6, Mandir Chowk Turkia, Ditt. Mansaur, M.P. from whom
no narcotic was recovered and thereafter I searched his car
bearing no.MP-14CB 3749 mark Ertiga white colour then
below the driver seat of the car 2 polythene bags were found
lying and after opening theirmouths it was found containing
opium. The recovered opium was weighted on a computerized
weighting scale wherein weight of 1 polythene bag was 5 kgs
and weight of 2nd polythene bag was 6 kgs. Thus total 11 kgs
opium was recovered. The recovered opium were separately out
in plastic boxes and parcel was prepared which was sealed
with seal SS and DSP put his seal as JK. The sealed parcelsand3 of 11
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car bearing no. MP-14CB 3749 mark Ertiga white colour
alongwith RC was taken into possession vide separate recovery
memo which was signed by accused and attested by witnesses
andverified by D.S.P. Seal after use was handed over to HC
Sandeep Kumar 772 and seal of DSP was retained by himself.
Accused Dinesh kumar upon asking told that he has purchased
this opium from Samart S/o Ramlal Dhangar R/o Dobra, P.S.
Narayangarh, Distt. Mandeaur, MP and further disclosed that
he was going to sell this to Jaibir S/o Sahab Singh R/o Dabra
Kalan. Thus accused Dinesh Kumar by keeping in possession
11 Kgs opium has committed an offence under Section
17/27A/61/85 of NDPS Act. The ruqa was prepared and same
was sent through Const. Sunil Kumar 898 in P.SKotbhai for
registration of FIR. After registration of FIR, no. to be informed
at the spot. Special report is to be prepared and sent. I SI is
present at the epot for investigation. Today at Bahad rakba,
VillageJamal, Fefan road, semnala. Sd/- SI Satbir Singh
488/Sirsa CIA Sirsa dated 11.06.2020 at 3:00 PM.”
5. Learned counsel for the petitioner submits that the petitioner
has been falsely implicated in this case and he is a man of clean antecedents.
The petitioner has undergone an actual custody of 02 years, 09 months and
03 days and there is no other criminal case pending against him.
6. Per contra, learned State counsel has vehemently opposed the
submissions made by the learned counsel for the petitioner. He has filed
custody certificate in Court today and the same is taken on record. As per
custody certificate, the petitioner has undergone an actual custody of 02
years, 09 months and 03 days and it is not disputed that there is no other
criminal case pending against him. He on instructions submits that charges
were framed on 21.09.2021 and out of total 27 prosecution witnesses, 05
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witnesses have been examined. He further submits that there is a recovery
of 11 kgs. of opium from the petitioner and in view of strict rigors of Section
37 of the NDPS Act and serious allegations against the petitioner, he is not
entitled to the concession of regular bail.
7. Counsel for the petitioner further places reliance upon Rabi
Prakash Vs. The State of Odisha passed in Special Leave to Appeal
(Crl.) No(s). 4169 of 2023 decided on 13.07.2023 wherein it has been held
as under :-
“4. As regard to the twin conditions contained in
Section 37 of the NDPS Act, learned counsel for the
respondent – State has been duly heard. Thus, the 1st
condition stands complied with. So far as the 2nd condition re:
formation of opinion as to whether there are reasonable
grounds to believe that the petitioner is not guilty, the same
may not be formed at this stage when he has already spent
more than three and a half years in custody. The prolonged
incarceration, generally militates against the most precious
fundamental right guaranteed under Article 21 of the
Constitution and in such a situation, the conditional liberty
must override the statutory embargo created under Section
37(1)(b)(ii) of the NDPS Act.”
8. Heard the rival submissions made by learned counsel for the
parties.
9. Earlier to Rabi Prakash’s case supra also Apex Court has
consistently held that the prolonged incarceration has to be considered
dehors bar contained under Section 37 of the NDPS Act. The Supreme Court
in order dated 22.08.2022 passed by the Supreme Court in Special Leave to
Appeal (Crl.) No.5530-2022 titled as “Mohammad Salman Hanif Shaikh
Vs. The State of Gujarat”, had held as under:-
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“We are inclined to release the petitioner on bail only
on the ground that he has spent about two years in custody
and conclusion of trial will take some time.
Consequently, without expressing any views on the
merits of the case and taking into consideration the custody
period of the petitioner, this special leave petition is accepted
and the petitioner is ordered to be released on bail subject to
his furnishing the bail bonds to the satisfaction of the Special
Judge/ concerned Trial Court.
The special leave petition is, accordingly, disposed of
in the above terms.
Pending application(s), if any, shall also stand
disposed of.”
10. In Hasanujjaman & others Versus The State of West
Bengal, SLP (Crl.) No.(s).3221/2023, decided on 04.05.2023, held as
under:-
“1. There are three petitioners in this Special Leave
Petition, who were accused of committing an offence under
Sections 21(c)/29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, `NDPS Act’) in FIR
No.18/2022, dated 09.01.2022, registered at Police Station
Islampur, District Murshidabad, West Bengal.
2. The allegations are that when the police party
intercepted the petitioners along with another person riding
on two motorcycles, they were found in possession of codeine
phosphate in a consignment of phensedyl bottles loaded in
two nylon bags. During the search, 115 bottles (100 ml.
Each) of phensedyl were recovered from the joint possession
of the petitioners. They were arrested on the spot and have
been in custody for more than one year and four months.
3. We have heard learned counsel for the parties and
carefully perused the record.
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4. The investigation is complete; chargesheet has been
filed, though the charges are yet to be framed. The conclusion
of trial will, thus, take some reasonable time, regardless of
the direction issued by the High Court to conclude the same
within one year from the date of framing of charges. The
petitioners do not have any criminal antecedents. There is,
thus, substantial compliance of Section 37 of the NDPS Act.
5. In such circumstances, but without expressing any
views on the merits of the case, we deem it appropriate to
release the petitioners on bail subject to the terms and
conditions as may be imposed by the Trial Court.
6. Additionally, it is clarified that in case the
petitioners are found involved in any other case under the
NDPS Act or other penal law, it shall amount to misuse of the
concession of bail granted to them today, and in such a case,
necessary consequences shall follow.
7. The petitioners are further directed to appear before
the Trial Court regularly. In the event of they being absent, it
shall again be taken as a misuse of concession of bail.
8. The Special Leave Petition stands disposed of in the
above terms.
9. As a result, pending interlocutory application also
stands disposed of.
11. In order dated 05.08.2022 passed by the Supreme Court in
Criminal Appeal No.1169 of 2022 titled as “Gopal Krishna Patra @
Gopalrusma Vs. Union of India”, the Supreme Court was pleased to
observe as under: –
“Leave granted.
This appeal challenges the judgment and order dated
25.01.2022 passed by the High Court Of Madhya Pradesh,
Principal Seat at Jabalpur, in MCRC No.117/2022. The
appellant is in custody since 18.06.2020 in connection with7 of 11
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crime registered as N.C.B. Crime No.02/2020 in respect of
offences punishable under Sections 8, 20, 27-AA, 28 read
with 29 of the Narcotic Drugs and Psychotropic Substances
Act, 1985.
The application seeking relief of bail having been
rejected, the instant appeal has been filed.
We have heard Mr. Ashok Kumar Panda, learned
Senior Advocate in support of the appeal and Mr. Sanjay
Jain, learned Additional Solicitor General for the respondent.
Considering the facts and circumstances on record
and the length of custody undergone by the appellant, in our
view the case for bail is made out.
We therefore, direct that:
(a) The appellant shall be produced before the Trial Court
within five days from today.
(b) The Trial Court shall release the appellant on bail subject
to such conditions as the Trial Court may deem appropriate
to impose.
(c) The appellant shall not in any manner misuse his liberty.
(d) Any infraction shall entail in withdrawal of the benefit
granted by this Order.
The appeal is allowed in aforesaid terms.”
12. In order dated 01.08.2022 passed by the Supreme Court in
Special Leave to Appeal (Crl.) No.5769/2022 titled as “Nitish Adhikary @
Bapan Vs. The State of West Bengal” Supreme Court has observed as
under:-
“As per the office report dated 29.07.2022, copy of the show
cause notice along with Special Leave Petition was supplied
to the Standing Counsel for the State of West Bengal and
separate notice has been served on the State also. However,
no one has entered appearance on their behalf.
The petitioner seeks enlargement on bail in F.I.R. No. 612 of
2020 dated 17.10.2020 filed under Section 21(c) and 37 of the
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NDPS Act, registered at Police Station Bongaon, West
Bengal.
During the course of the hearing, we are informed that the
petitioner has undergone custody for a period of 01 year and
07 months as on 09.06.2022. The trial is at a preliminary
stage, as only one witness has been examined. The petitioner
does not have any criminal antecedents.
Taking into consideration the period of sentence undergone
by the petitioner and all the attending circumstances but
without expressing any views in the merits of the case, we are
inclined to grant bail to the petitioner.
The petitioner is accordingly, directed to be released on bail
subject to him furnishing bail bonds to the satisfaction of the
Trial Court.
The Special Leave Petition is disposed of on the aforestated
terms.
Pending application(s), if any, shall stand disposed of.”
13. The veracity of the allegations leveled against the petitioner
shall be established during the course of the trial. Admittedly, petitioner has
undergone an actual custody of 02 years, 09 months and 03 days and there
is no other case pending against him. The investigation is complete.
Charges were framed on 21.09.2021 and out of total 27 prosecution
witnesses, 05 witnesses have been examined. Therefore, further
incarceration of the petitioner will not serve any purpose and will be
violation of Article 21 of the Constitution of India including the right to
speedy trial, and is against the principle “Bail is a rule, jail is an exception”
as elucidated in the judgment of Apex Court in “Dataram Singh vs. State
of Uttar Pradesh and another, (2018) 3 SCC 22”.
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14. Deprivation of personal liberty without ensuring speedy trial is
not consistent with Article 21. While deprivation of personal liberty for
some period may not be avoidable, period of deprivation pending
trial/appeal cannot be unduly long. The Apex Court in “Abdul Rehman
Antulay and others v. R.S. Nayak and another”, 1992(2) RCR
(Criminal) 634 observed that Right to Speedy Trial flowing from Article 21
encompasses all the stages, namely the stage of investigation, inquiry, trial,
appeal, revision and retrial.
15. Without commenting anything on the merits of the case, lest it
may prejudice the trial, the present petition is allowed and the petitioner is
ordered to be released on regular bail on his furnishing adequate bail/surety
bonds to the satisfaction of the concerned learned trial Court/Duty
Magistrate. The petitioner shall also abide by the following conditions:-
(I) The petitioner will not tamper with the evidence during
the trial.
(II) The petitioner will not pressurize/intimidate the
prosecution witness(s).
(III) The petitioner will appear before the trial Court on the
date fixed, unless personal presence is exempted.
(IV) The petitioner shall not commit an offence similar to the
offence of which he is accused of, or for commission of
which he is suspected.
(V) The petitioner shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer
or tamper with the evidence.
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16. In case of breach of any of the above conditions, the
prosecution shall be at liberty to move an application for cancellation of bail
before this Court.
17. However, nothing stated above shall be construed as a final
expression of opinion on the merits of the case and the trial Court would
proceed independently of the observations made in the present case which
are only for the purpose of adjudicating the present bail petition.
Pending miscellaneous application(s), if any, also stands disposed of.
(KIRTI SINGH)
JUDGE
13.12.2024
Ramandeep Singh
Whether speaking / reasoned Yes/No
Whether Reportable Yes/No
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