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2010 DIGILAW 1429 (PNJ)

Praveen Kumar v. State Of Haryana

2010-04-08

SHAM SUNDER

body2010
Judgment Sham Sunder, J. 1. This petition under Section 438 of the Code of Criminal Procedure, has been filed by. the petitioners, for the grant of pre-arrest bail, in case FIR No.114 dated 12.12.2009, under Section 18 of the Narcotic Drugs & Psychotropic Sub- stances Act, 1985, Police Station Sector-20, Chandimandir (Panchkula, Haryana). 2. I have heard the counsel for the parties, and have gone through the records of the case, carefully. 3. The counsel for the petitioners, has submitted that as per the allegations, on 12.12.2009, three persons came on a scooter and when the same was signalled to stop, two persons, who were later on identified as Parveen Kumar alias Vicky and Jatinder Kumar alias Babbu, petitioners, succeeded in running away, whereas, Mohit Kumar alias Kallu (non-applicant) was arrested, at the spot and was found in possession of 280 grams opium, without any permit or licence. He has further submitted that on 11.12.2009 Parveen Kumar alias Vicky, suffered from epileptic fits, at Jalandhar, and he consulted the doctor, who advised him five days rest. He has further submitted that Jatinder Kumar alias Babbu, brother of Parveen Kumar, was also with him, and both of them, stayed in the house of Satnam Singh Gill, DSP, 75th Bn. PAP, Jalandhar Cantt, from 11.12.2009 to 13.12.2009. He has further submitted that on 13.12.2009 they left his house. He has further submitted that an affidavit has already been submitted by the said DSP. He has further submitted that since both the petitioners were in the house of the aforesaid DSP, from 11.12.2009 to 13.12.2009, the question of their presence on 12.12.2009 in the area of Panchkula, where the alleged recovery was effected, from Mohit Kumar did not at all arises. He has further submitted that the petitioners have been falsely implicated in the instant case. 4. On the other hand, the counsel for the respondent-State, has submitted that the cell phone records of the petitioners were obtained. He has further submitted that cell phone No.9041573485, issued in the name of Parveen Kumar, one of the petitioners, was recovered from Mohit Kumar, who was arrested at the spot. He has further sub- mitted that Parveen Kumar, was having another cell phone, with him. He has further submitted that cell phone No.9041573485, issued in the name of Parveen Kumar, one of the petitioners, was recovered from Mohit Kumar, who was arrested at the spot. He has further sub- mitted that Parveen Kumar, was having another cell phone, with him. He has further submitted that as per the call details record, on 11.12.2009 and 12.12.2009, the phone of Parveen Kumar, petitioner, was found switched off, and his location was in Panchkula, and Chandigarh. He has further submitted that on 13.12.2009, the cell phone of Parveen Kumar, was in operation and at 8.37 a.m., his location was Manimajra. He has further submitted that there were inter se calls between Parveen Kumar and Mohit Kumar on the cell phones. He has further submitted that this goes to show that Parveen Kumar and Jatinder Kumar were, in the area of Panchkula and Chandigarh on 11,12 and 13.12.2009, and, as such the story of the police, that they succeeded in running away, after alighting from the scooter, whereas Mohit Kumar alias Kallu, was arrested, and recovery of 280 grams opium, was effected, is correct. 5. After giving my thoughtful consideration, to the rival contentions, raised by the counsel for the parties, in my considered opinion, it is a fit case, in which the anticipatory bail should be granted, to the petitioners, for the reasons to be recorded hereinafter. Earlier Satnam Singh Gill, DSP, 75th Bn. PAP, Jalandhar had filed an affidavit to the effect that from 11.12.2009 to 13.12.2009 morning both the petitioners stayed, in his house and Parveen Kumar, one of the petitioners, had been advised rest. Today again he has filed a specific affidavit, reiterating the same facts. In the affidavit, he has also stated that both the persons left his house, at 8.30 a.m. on 13.12.2009. However, the call details record, in respect of the cell phone of Parveen Kumar and the cell phone of Mohit Kumar, given to him by Parveen Kumar, speak otherwise. At this stage, it cannot be definitely said, as to whether, the story propounded by the investigating agency is correct or the call details record is correct. Such a question could be finally determined during the trial of the case. At this stage, however, some doubt is cast on the prosecution case. The custodial interrogation of the accused petitioners is not at all required. Such a question could be finally determined during the trial of the case. At this stage, however, some doubt is cast on the prosecution case. The custodial interrogation of the accused petitioners is not at all required. The alleged recovery effected from Mohit Kumar, alias Kallu (non-applicant) falls within the purview of non-commercial quantity. Keeping in view the facts and circumstances, referred to above, the petition deserves to be accepted. 6. For the reasons recorded, hereinbefore, criminal miscellaneous No. M-6921 of 2010, is accepted. In the event of arrest, the petitioners shall be released on anticipatory bail, to the satisfaction of the Arresting Officer, on their furnishing the bail bonds, in the adequate sum, subject to the compliance of the conditions contained in Section 438(2) Criminal Procedure Code.