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2002 DIGILAW 540 (PNJ)

Balkar Singh @ Phalki v. State Of Haryana

2002-05-15

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Petitioner, Balkar Singh, seeks anticipatory bail in case bearing FIR No. 474 dated 23.8.2001 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in shoirt the Act) with Police Station Sadar, Fatehabad. 2. According to the prosecution allegations, on 23.8.2001, ASI Charan Singh along with other police officials was present at T-point in the area of village Ayalki in connection with Nakabandi. A Canter bearing registration No. HR-39/4698 came towards Fatehabad side which was signalled to stop by ASI Charan Singh upon which driver of the Canter stopped the canter at some distance. Malkiat Singh was found driving the canter. One person who was sitting behind the canter was successful in making good his escape. In the meanwhile, Dyal Chand also came from the side of Fatehabad on a scooter. He was associated by the police in the investigation. Malkiat Singh disclosed the name of his companion who had escaped from the spot as Balkar Singh. Dyal Chand also disclosed the name and identity of Balkar Singh. The presence of Jiwan Singh Naib Tehsildar, Fatehabad, was secured and thereafter, seizure proceedings were conducted. On checking the Canter, seven jute bags containing poppy-husk were found lying therein and each bag was found to contain 40 Kg. of poppy-husk. After completion of the proceedings, the present case was registered. 3. Counsel representing the petitioner while pressing for his bail has made mani-fold submissions before me; firstly, that the petitioner has been roped in the present case at the behest of the Sarpanch of the village due to party-faction in order to humiliate and harass him and further to pressurize him not to participate in the political meetings and rallies and also to instigate his co-villagers to go against him; secondly, that the identity of the petitioner has not been established as admittedly, he was not apprehended at the spot and the statement of his co-accused Malkiat Singh disclosing his name as his accomplice cannot be taken into consideration because the statement of an accused made to the police during investigation of the case is inadmissible, and thirdly that an improbable version has been put forth in the report lodged because the distance of Fatehabad town is 10 kms from village Ayalki and Hissar is at a distance of 50 Kms. and the petitioner-accused had submitted a telegram at Hisar at 4.20 P.M. addressed to this Court wherein it was stated that his house has been raided in the morning of 22.8.2001 at 3 A.M. and his son Mangat Singh has been forcibly picked up by the police, which circumstances indicates that the present case has been foisted upon him. 4. Opposing the submissions made, it has been vehemently argued that the identity of the petitioner-accused was disclosed not only by Malkiat Singh but also by Dyal Chand who is an independent witness and his name has been specifically mentioned in the report lodged with the police and thus, it cannot be said that the name of he petitioner has been subsequently introduced during the investigation of the case. It was also pointed out by him that the very fact that the petitioner-accused managed to escape soon after the canter was intercepted by the police clearly shows that he had no explanation with regard to his being with his co-accused in the Canter and that the recovery of 240 Kgs. of poppy-husk from the Canter in which the petitioner-accused and his co-accused were travelling being a commercial quantity, the concession of bail should not be extended to him. It was also submitted by the State counsel that as many as 12 cases were already registered against the petitioner-accused before the registration of the present case against him. 5. By now, it is well-settled that recording of finding in terms of Section 37 of the Act is a sine-qua-non for granting bail to an accused involved in the commission of crime under the Act. The main ground on which the bail has been sought is with regard to non-arrest of the petitioner at the spot and the improbable version rendered by the prosecution with regard to his presence along with the co-accused at the time when the Canter in question was intercepted. The plea of alibi taken by the petitioner-accused is to be adjudicated upon during the trial of the case. At this stage, it is manifest on record that his name figures in the report lodged. The plea of alibi taken by the petitioner-accused is to be adjudicated upon during the trial of the case. At this stage, it is manifest on record that his name figures in the report lodged. The quantity of poppy- husk recovered from the possession of the petitioner and his co-accused being a commercial quantity in term of the notification dated 19.10.2001 issued by the Central Government, the rigours and limitation laid down in section 37 of the Act cannot be ignored. Consequently, it cannot be said that no case is made out all against the petitioner-accused. 6. For the reasons recorded above, the petition is dismissed.