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2020 DIGILAW 315 (PNJ)

Ram Niwas v. State Of Haryana

2020-01-28

ARVIND SINGH SANGWAN

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JUDGMENT Arvind Singh Sangwan, J. (Oral) - Prayer in this petition is for grant of regular bail to the petitioners under Section 439 of the Code of Criminal Procedure (in short 'Cr.P.C.') in FIR No.309 dated 14.08.2018, for offence punishable under Sections 20 and 27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the NDPS Act) registered at Police Station Badhra, District Charkhi Dadri. 2. Counsel for the petitioner has relied upon the order dated 18.01.2019 passed by this Court in CRM-M Nos.165 and 159 of 2019. The operative part of the said order, reads as follows:- '. Counsel for the petitioners has relied upon the order dated 26.11.2018 passed in CRM-M No.50271 of 2018, vide which the co-accused of the petitioner namely Parveen has been granted the concession of regular bail by this Court, noticing the fact that other accused namely Manjeet @ Bachhiya and Rinku have already been granted the concession of regular bail. The operative part of the order dated 26.11.2018 is reproduced as under:- '.... vide order dated 21.11.2018 passed in CRM-M-50050-2018. The operative part of the order reads as under: ' Learned counsel for the petitioner submits that as per the allegations in the FIR, on receiving a secret information that three persons, namely Satish, Sandeep @ Nippo and Manjeet @ Bachhiya, are coming on a motorcycle carrying contraband, the police party laid a Nakabandi and stopped the motorcycle on which the accused persons were coming. It is further submitted that the secret information was never recorded in writing for registration of the FIR in this regard. Learned counsel for the petitioner further submits that in the FIR, it is further stated that after all the three persons were apprehended by the police and their names were disclosed, the Inspector/Investigating Officer obtained their joint consent and thereafter, he called the DSP at the spot. Learned counsel for the petitioner relies upon the judgment rendered in 'State of Rajasthan v. Parmanand and another', 2014(2) RCR (Criminal) 40, wherein, it has been held by the Hon'ble Supreme Court that considering the stringent provisions under the NDPS Act, the right available to an accused person under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate, will be frustrated in case clear, unambiguous and individual offer is not given to the accused person. It is further held that joint communication of a right may not be clear or unequivocal as it may create confusion and may result in diluting the right. Learned counsel for the petitioner further submits that in the FIR, it has come that after the recovery was effected from co-accused Sandeep @ Nippo, a parcel was prepared and sealed by putting five seals namely 'TS' and after using the seal, the same was destroyed and was not kept in safe custody, hence, again the proper procedure has not been followed. Learned counsel for the petitioner further submits that petitioner is not involved in any other case under the NDPS Act. Learned State counsel, on instructions from ASI Harinder Singh, submits that though the petitioner is not involved in any other case under the NDPS Act, however, he is involved in three other FIRs in other offences in which he is on bail. It is further submitted that investigation is complete and challan stands presented and eleven prosecution witnesses are yet to be examined. ' Learned counsel for the petitioner further submits that petitioner was not arrested at the spot and he is not involved in any other case. Learned State counsel, on the basis of the custody certificate filed in Court today and on instructions from HC Sandeep Kumar, has not disputed the factual position. As per custody certificate, petitioner is not involved in any other case. I have heard learned counsel for the parties. Without commenting upon the merits of the case, considering the aforesaid submissions of learned counsel for the petitioner; the instant petition is allowed. The petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court/Duty Magistrate concerned. I have heard learned counsel for the parties. Without commenting upon the merits of the case, considering the aforesaid submissions of learned counsel for the petitioner; the instant petition is allowed. The petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court/Duty Magistrate concerned. ' Counsel for the petitioners has further argued that the aforesaid 03 co-accused have been granted the concession of regular bail noticing the fact that while conducting the search, a joint notice was given to them, who were arrested at the spot by Inspector Hitender Singh(the Investigating Officer) and, therefore, in view of the judgment 'State of Rajasthan v. Parmanand and another', 2014(2) RCR (Criminal) 40, wherein it has been held by the Hon'ble Supreme Court that considering the stringent provisions under the NDPS Act, the right available to an accused person under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate, will be frustrated in case clear, unambiguous and individual offer is not given to the accused person. It is further held that joint communication of a right may not be clear or unequivocal as it may create confusion and may result in diluting the right, the aforesaid 03 co-accused were granted the concession of regular bail. It was also observed that despite receiving a secret information and without recording the same in writing or sending the information for registration of the case, further investigation was carried out by the same police official ....' 3. Counsel for the petitioner has further submitted that the petitioner was not named in the FIR and his name has been surfaced on the basis of the disclosure statement of the other co-accused and he is not involved in any other case and is in custody for the last about 01 month. 4. Counsel for the State, on instructions from the Investigating Officer and on the basis of the Custody Certificate, filed in the Court today, has not disputed the factual position as noticed in the earlier order passed by this Court but opposed the prayer for bail. 5. 4. Counsel for the State, on instructions from the Investigating Officer and on the basis of the Custody Certificate, filed in the Court today, has not disputed the factual position as noticed in the earlier order passed by this Court but opposed the prayer for bail. 5. Without commenting anything on merits of the case, considering the fact that the petitioner is in custody for the last 01 month; the co-accused of the petitioner namely Sandeep @ Nippo and Mohan @ Kaliya, have already been granted the concession of regular bail; the petitioner is not involved in any other case; the custodial interrogation of the petitioner is not required and it will take some time in conclusion of the trial and considering the observations made by this Court in the order dated 18.01.2019, this petition is allowed and the petitioner is directed to be released on bail subject to her furnishing bail/surety bonds to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate. 6. However, it will be open for the prosecution to apply for cancellation of bail of the petitioner, in case she is found involved in any other case or misusing the concession of bail, in any manner.