Punjab-Haryana High Court
Ajay vs State Of Haryana on 28 August, 2023
CRR-1863-2023 (O&M)
104 2023:PHHC:112835
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRR-1863-2023 (O&M)
Date of decision: 28.08.2023
Ajay
....Petitioner
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present:- Mr. Parveen Sharma, Advocate for petitioner.
Mr. Vikas Bhardwaj, AAG, Haryana.
*****
ARUN MONGA, J. (ORAL)
Revision petition is directed against order dated 20.07.2023 passed by
learned Additional Sessions Judge, Panipat in bail application No.1532 of 2023 titled
'Ajay Versus State of Haryana', whereby petitioner's bail application under Section
167(2) Cr.P.C. in case FIR No.781 dated 25.12.2022 registered under Section 20 of
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), at Police
Station, Industrial Sector -29, Panipat, District Panipat, was dismissed.
2. Per prosecution case, on 25.12.2022,SI Satpal Singh along with otherpolice
officials was on routine patrolling and checking, when petitioner and his co-accused were
intercepted by police on the basis of secret information. After carrying out formalities,
search was conducted. SI carried out the search of both the boys along with bags. On
checking, both bags were found containing two polythene bags. One white coloured
polythene was found containing charas weighing about 1 kg 70 gram and second green
coloured polythene was found containing charas weighing about 1 kg 600 gm. FIR was
registered and petitioner was arrested from the spot on 25.12.2022 and is in custody ever
since.
3. Learned counsel contends that alleged recovery has been planted on him.
Petitioner has thus been falsely implicated. Petitioner is not involved in any other case.
He is totally innocent. Petitioner has indefeasible right to be released on bail as per
provisions of section 167(2) Cr.P.C. read with Section 36A(4) of NDPS Act. He further
contends that in the present case, the police has submitted the challan without report of
VANDANA FSL, which amounts to incomplete challan, as envisaged under Section 173 (5) Cr.P.C.
2023.08.29 09:58
I attest to the accuracy and
CRR-1863-2023 (O&M)
and therefore, petitioner is entitled to default bail. He applied for the same before learned
Additional Sessions Judge, Panipat, but the same was dismissed vide order impugned
herein.
3.1 Learned counsel for the petitioner further submits that in any case, alleged
contraband recovered from the petitioner was weighed along with plastic bag and it is
thus that the total weight is stated to be 1 kg 600 grams, which too is marginally higher
than commercial quantity. There is every chance that recovery may fall in non-
commercial quantity, owing to error in weighment and inclusion of weight of polythene
bag with the alleged contraband.
3.2 He also refers to a Division Bench Judgment of this Court in case Ajit
Singh alias Jeeta and another vs. State of Punjab1 to contend that report of chemical
examiner must be mandatorily included in the final report under Section 173 Cr.P.C. and
in the absence of the same, challan would be incomplete and Court is not competent to
take cognizance of the offence in an incomplete challan.
3.2 He also submits that nothing is to be recovered from the petitioner and he is
not required for further custodial interrogation. There is no likelihood of petitioner
tampering with evidence and/ or influencing prosecution witnesses.
4. Per contra learned State counsel submits that challan presented by the
police cannot be said to be incomplete as FSL report is a per se admissible document
which can be produced at any time during course of trial in view of Section 293 of
Cr.P.C. He further points out that FSL report has been filed by the prosecution on
25.08.2023.
4.1. He further submits that petitioner has committed a serious offence.In case,
petitioner is granted concession of bail, there are chances of hisfleeing from justice. He
submits that per his instructions, 1 kg 620 gram charas contained in polythene bag was
recovered from the conscious possession of the petitioner. Learned State counsel further
contends that recovery of contraband falls under commercial quantity andrigors of
Section 37 of NDPS Act would be attracted in this case. He however, admits that no
other case is pending against him.
VANDANA
1 09:58
2023.08.29 Criminal Revision No.4659-2015 decided on 30.11.2018
I attest to the accuracy and
CRR-1863-2023 (O&M)
5. I have heard rival contentions of learned counsels for the parties and have
gone through the case file.
6. There is force in the contention of learned counsel for the petitioner that
police report filed without the Chemical Examiner Report is an incomplete challan in
view of ratio laid down by Division Bench of Court in Ajay Singh's case (supra),
thereby entitling him to claim default bail under Section 167(2) Cr.P.C. read with Section
36A(4) of the NDPS Act.
7. That apart, on a Court query, learned State counsel, on instructions from
ASI Balinder submits that challan was filed but charges are yet to be framed.
Investigation qua the petitioner is complete. Petitioner is thus not required for custodial
interrogation. Allegations against the petitioner are a matter of trial at this stage. There
are 13 prosecution witnesses. Commencement/conclusion of trial will take some time as
it is proceeding at a snail pace. Bail allows an accused to maintain his freedom until his
guilt or innocence is determined. Whereas, petitioner has already been in jail for the last
more than 08 months, being in custody since 25.12.2022.
8. Petitioner is being kept in preventive custody merely on an unfounded
suspicion that if he is let out, he may either tamper with evidence and/ or influence
witnesses. There is no documentary evidence and it is more in the nature of FSL report
qua contraband, already filed in the trial Court to which accused has no access. There is
no probability of tampering with evidence as the same has already been seized by the
investigating agency.As regards witnesses, they are all official and therefore, they are
unlikely to be influenced, even if there is any such apprehension by the prosecution.
9. Be that as it may, offence allegedly committed by petitioner is of non-
violent nature and in that sense his release on bail is not a threat to society at large by
committing any violent crime. In any case, allegations against petitioner are matter of
trial. At this stage, there appears to be a reasonable ground that petitioner maynot be
guilty of the alleged offence. He is unlikely to commit any offence while on bail.
10. Petitioner is stated to be family man with responsibilities, having fixed
abode and clean antecedents, it is unlikely that he poses any flight risk and/or will flee
VANDANA from trial proceedings.
2023.08.29 09:58
I attest to the accuracy and
CRR-1863-2023 (O&M)
11. Considering the overall scenario and without commenting on the merits of
the case, the instant petition is allowed. I am of the view that no useful purpose would be
served to keep the petitioner in further preventive custody.
12. Accordingly, instant revision petition is allowed and order dated
20.07.2023 passed by learned Additional Sessions Judge, Panipat is set aside. Petitioner
is ordered to be released on bail, if not required in any other case, on his furnishing bail
bonds and surety bonds to the satisfaction of learned trial Court, where his case is being
tried and in case he/she is not available, before learned Duty Judge, as the case may be.
13. In case, petitioner is found to be involved or gets involved in any offence
while on bail, the prosecution shall be at liberty to seek cancellation of his bail in the
instant case.
14. It is made clear that any observations and/or submissions noted hereinabove
shall not have any effect on merits of the case as the same are for the limited purpose of
hearing the instant bail petition alone and learned trial Court shall proceed without being
influenced with this order.
15. Pending application(s), if any, shall also stand disposed of.
(ARUN MONGA)
JUDGE
28.08.2023
vandana
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
VANDANA
2023.08.29 09:58
I attest to the accuracy and
