Punjab-Haryana High Court
Balbir Singh vs State Of Haryana on 8 September, 2022
102 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-36597-2022
Date of decision: 08.09.2022
Balbir Singh ...........Petitioner
versus
State of Haryana .......Respondent
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. V.B. Godara, Advocate
for the petitioner.
Ms. Gagandeep Kaur, AAG, Haryana.
NAMIT KUMAR, J. (ORAL)
This petition has been filed under Section 438 Cr.P.C. for grant
of anticipatory bail to the petitioner in a case bearing FIR No.410 dated
03.08.2022 under Section 21(b) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short 'the Act') registered at Police Station Sadar
Fatehabad, District Fatehabad.
The brief facts of the case are that on 3rd August, 2022, a police
party headed by ASI Kuldeep Singh, apprehended co-accused-Vishnu, son
of Kailash Chander on the basis of suspicion and after making compliance
of notice under Section 50 of the Act, recovery of 06 grams of heroin was
effected form the right pocket of his wearing trouser in the presence
of Sh. Vikas Kumar, Assistant Professor, Government Women College,
Bhodiakhera. The recovered contraband was taken into police possession in
accordance with law. On interrogation, co-accused-Vishnu suffered his
disclosure statements of having purchased the recovered contraband from
present petitioner/accused-Balbir Singh @ Babri.
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The petitioner had filed the application for anticipatory bail
under Section 438 Cr.P.C. before the Court of learned Additional Sessions
Judge, Fatehabad and the said application was dismissed by the learned
Additional Sessions Judge, Fatehabad vide judgment/order dated
08.08.2022, relevant portion of which is reproduced as under:-
"Heard. Merits are not to be dwelt upon at this stage.
Without commenting anything on the merits of the case, lest
it may prejudice the case of either of the parties, allegedly
contraband heroin weighing 06 gms which was recovered
from co-accused namely Vishnu, was allegedly procured the
same from the present petitioner-accused. Pre-arrest bail is
not to be granted as a matter of routine/course in all cases.
The grant or refusal of such bail depends on the variety of
circumstances, the cumulative effect of which, should enter
the judicial verdict. The power under section 438 of Cr.P.C.
is to be exercised sparingly and in exceptional cases keeping
into focus the facts and circumstances of each case. At the
same time, it is well-settled that the order of anticipatory bail
cannot be allowed to circumvent normal procedure of arrest
and investigation by the police. The Court has also to see
that the investigation is in the province of the police and an
order of anticipatory bail should not operate as an in-road
into the statutory investigational powers of the police, in
exercising the judicial discretion in granting the anticipatory
bail. The Court should not be unmindful of the difficulties
likely to be faced by the Investigating Agency and the public
interest likely to be affected thereby in this relevant
connection. In a given situation, custodial interrogation of
the petitioner-accused is certainly required for complete and
effective investigation. In case, same is denied to the
Investigating Agency that shall leave many glaring loopholes
and gaps, adversely affecting investigation, which is
uncalled for. As per prosecution, the petitioner accused is a
habitual offender as he is involved in one another case under
Excise Act and has also been convicted in one case under
Section 174-A of IPC. The custodial interrogation of the
petitioner-accused is required to find out from where he had
been procuring the contraband. Therefore, keeping in view
totality of entire scenario and nature of offence, no extra-
ordinary ground is made out in favour of the petitioner-
accused for his entitlement of pre-arrest bail."
Thereafter, the petitioner has filed the instant petition before
this Court.
Learned counsel for the petitioner submits that he has been
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falsely implicated in the case and he has been nominated on the basis of
disclosure statement of Vishnu who was apprehended with 06 grams of
heroin and, therefore, is entitled to the grant of pre-arrest bail.
Per contra, the learned State counsel has opposed the grant of
anticipatory bail to the petitioner and submits that even if the petitioner has
been nominated on the basis of disclosure statement of co-accused, namely,
Vishnu, he does not deserve the concession of bail and if granted, he might
influence the trial.
She has also placed reliance on the law laid down by the
Hon'ble Supreme Court in the case of 'The State of Haryana versus Samarth
Kumar' reported as 2022 (3) RCR (Criminal) 991 and she refers to para 4 to
9 of the judgment which is reproduced as under:-
4. The High Court decided to grant pre-arrest bail to the
respondents on the only ground that no recovery was
effected form the respondents and that they had been
implicated only on the basis of the disclosure statement of
the main accused Dinesh Kumar, Therefore, reliance was
placed by the High Court in the majority judgment of this
Court in Tofan Singh vs. State of Tamil Nadu reported in
(2021) 4 SCC 1.
5. But, it is contended by the learned Additional Advocate
General appearing on behalf of the State of Haryana that on
the basis of the anticipatory bail granted to the respondents,
the Special Court was constrained to grant regular bail even
to the main accused-Dinesh Kumar and he jumped bail.
Fortunately, the main accused-Dinesh Kumar has again been
apprehended. According to the learned Additional Advocate
General, the respondents in the second of these appeals is
also a habitual offender.
6. Learned counsel appearing on behalf of the respondent in the
first of these Appeals contends that the State is guilty of
suppression of the vital fact that the respondeat was granted
regular bail after the charge-sheet was filed and that
therefore, nothing survives in the appeal. But, we do not-
agree.
7. The order of the Special Court granting regular bail to the
respondents shows that the said order was passed in
pursuance of the anticipatory bail granted by the High Court.
Therefore, the same cannot be a ground to hold that the
present appeals have become infructuous.
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8. In cases of this nature, the respondents may be able to take
advantage of the decision in Tofan Singh vs. State of Tamil
Nadu (Supra), perhaps at the time of arguing the regular bail
application or at the time of final hearing after conclusion of
the trial.
9. To grant anticipatory bail in a case of this nature is not really
warranted. Therefore, we are of the view that the High Court
fell into an error in granting anticipatory bail to the
respondents.
The learned State counsel further submits that apart from this
case, the petitioner is also involved in other two cases, details of which are
as under:-
1. FIR No.152 dated 02.03.2004 under Section 61-1-14 of
the Excise Act, Police Station Sadar Hisar.
2. FIR No.237 dated 14.03.2010 under Section 174-A of
IPC, Police Station Sadar Hisar (conviction on dated
20.05.2016)
She further points out that in one of the cases, the petitioner
was declared a proclaimed offender and FIR under Section 174-A of IPC
was registered against him.
In light of the same, even if he has been nominated on the basis
of disclosure statement of the co-accused-Vishnu, he cannot escape from his
liability and also cannot claim the present relief only on this ground.
After hearing counsel for the parties and perusal of the records,
I am of the considered view that the petitioner is involved in two more cases
and has been convicted in FIR registered under Section 174-A of IPC
wherein he was declared a proclaimed offender. Therefore, in view of the
above, he does not deserve the concession of pre arrest bail in the present
case and the present petition stands dismissed.
(NAMIT KUMAR)
08.09.2022 JUDGE
Neha Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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