Rahul vs State Of Haryana
2023 Latest Caselaw 160 P&H

103         IN THE HIGH COURT OF PUNJAB AND HARYANA
                      AT CHANDIGARH

                                         CRM-M-246-2023
                                         Date of decision: 06.01.2023

Rahul                                                            ...........Petitioner

                                     versus

State of Haryana                                                 .......Respondent

CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Present:    Mr. Gourav Jain, Advocate
            for the petitioner.

            Mr. Vikrant Pamboo, DAG, Haryana.

NAMIT KUMAR, J.

This petition has been filed under Section 438 Cr.P.C. seeking

anticipatory bail in a case bearing FIR No.477 dated 06.10.2022 under

Section 21 (b) and Sections 27-A/29/31 (added later on) of the NDPS Act,

1985, registered at Police Station City Tohana District Fatehabad.

Briefly stated the facts of the case are that on 06.10.2022; a

police party headed by SI Radha Krishan, on the basis of secret

information, apprehended co-accused-Vinod Kumar son of Ram Sawroop

and Rajesh @ Kakka son of Kishori Ram, both residents of Killa Mohalla,

Tohana, Tehsil Tohara, District Fatehabad, within the area of Police Station

City, Tohana. After conducting legal proceedings, search was conducted

and recovery of 45 grams of heroin and currency notes worth Rs.2200/-

was effected from co-accused, Vinod Kumar, whereas, recovery of a

computer-scale was effected from co-accused Rajesh Kumar, in the

presence of Dr. Naveen Kumar, VS, GVH, Jakhal. Present case under

Section 21 (b) of the NDPS Act was registered. During interrogation, co-

accused Vinod Kumar and Rajesh @ Kaka suffered their respective

disclosure-statements admitting guilt and disclosing that they had

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purchased recovered contraband from applicant/accused-Rahul. Sections

27-A/29 of the NDPS Act have been added. After completion of

investigation report under Section 173 Cr.P.C. has been presented against

co-accused Vinod Kumar and Rajesh Kumar.

Learned counsel for the petitioner submits that against the

petitioner a concocted story has been made and he is innocent and has been

falsely implicated in the present case. He further submits that he was not

named in the FIR and has been nominated as an accused on the basis of

disclosure statements of co-accused, namely, Voinod Kumar and Rajesh

Kumar, made before the Police which is not admissible in law. He further

submits that the recovery, if any, has been effected from Vinod Kumar and

Rajesh Kumar and his custodial interrogation is not required and he is

ready and willing to join the investigation.

Learned State counsel on the strength of advance copy 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 he refers to para 4 to 7 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. 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 respondent was granted regular bail after the charge-sheet was filed and that therefore, nothing survives in the appeal. But, we do not agree.

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6. 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.

7. 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.

I have heard the counsel for the parties and perused the record.

The learned trial Court, vide orders dated 19.12.2022 while

rejecting the application seeking anticipatory bail to the petitioner, has held

as under:-

7. Perusal of case file shows that recovery of 45 grams of Heroin and currency notes worth Rs.2200/- was effected from co-accused-Vinod Kumar, whereas, recovery of a computer scale was effected from co- accused-Rajesh Kumar, within the area of Police Station City, Tohana. Allegations against applicant-accused are that he had supplied recovered contraband to co-accused Vinod Kumar. During investigation, applicant-accused was found in constant touch with co- accused-Rajesh @ Kaka and Vinod Kumar. As per prosecution, custodial interrogation of applicant/accused is required as name of person from whom above said contraband was procured is yet to be inquired and recovery of Rs.55,000/- is also yet to be effected from him. As per police reply, applicant/accused is also involved in 01 (one) more case under NDPS Act, meaning thereby, that he has no good antecedents and apprehension of learned Public Prosecution for the State that in case present applicant/accused is granted concession of anticipatory bail, then he may not cooperate with police in investigation, may commit such like cases and may abscond from trial, seems justified. Even otherwise also, anticipatory bail is an extra ordinary remedy which can be invoked in exceptional circumstances. This case does not present any exceptional circumstances warranting the grant of anticipatory bail.

8. Furthermore, the Hon'ble Punjab & Haryana High Court in case titled as Nirbhayaram Dhakad versus State of Haryana CRM-M-32340- 2022 date of decision 27.07.2022, dismissed the petition for anticipatory bail holding that 'The Act is a self contained statute which specifically deals with menace of drugs. Stringent provisions have been provided for dealing with such cases. The ground that the petitioner was named in a disclosure statement in itself cannot be the sole consideration for grant of pre-arrest bail. He is alleged to be the supplier of the recovered contraband. A deeper probe is required to unearth the modus operandi and chain of supply.' In the said case, the Hon'ble High Court has also relied upon judgment of the Hon'ble Supreme Court in case titled as 'State of Haryana Vs. Samarth Kumar,' Criminal Appeal No.1005 of 2022 decided on 20.07.2022; wherein, the Hon'ble Supreme Court has held that "advantage of the condition that no recovery is to be effected and that the petitioner has been named in the disclosure statement can be taken at the time of arguing regular bail or in trial. Grant of anticipatory bail in such cases is not warranted. The involvement of petitioner in six more cases is an indication of his antecedents."

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In view of the dictum given by the Hon'ble Supreme Court in

'Samarth Kumar case (Supra)', even if the petitioner has been nominated

on the basis of disclosure statement of the co-accused-Vinod Kumar and

Rajesh Kumar, who have stated that they procured the contraband from the

present petitioner, he cannot escape from his liability and also cannot claim

the relief of anticipatory bail only on this ground.

As per record, investigation qua petitioner is pending and the

source of procurement is yet to be inquired. During investigation he was

found to be in constant touch with co-accused. These facts necessitate the

custodial interrogation of the petitioner and recovery of Rs.55,000/- is yet

to be effected. Therefore, a deeper probe is required to unearth the modus

operandi and chain of supply. Moreso, petitioner is involved in one more

case i.e. FIR No.208 dated 16.05.2020 under Sections 323/506/34 of IPC

registered at Police Station City Tohana, District Fatehabad. Furthermore,

the recovery effected in this case is 45 grams of heroin and Rs.2,200/-

from the co-accused of the petitioner and petitioner named in the disclosure

statement, from whom, the co-accused purchased 50 grams of heroin for

Rs.5,500/-. Once, the allegations have been levelled against the petitioner

with regard to selling of the intoxicating substance, which was recovered

from the co-accused, the police has to unearth the total facts as to how the

petitioner got the said substance in his possession and further whether,

there were other people involved as well to whom the petitioner was selling

the same or not. For effective interrogation, especially for the violation of

NDPS Act, custodial interrogation is necessary. The lives of the citizens are

being destroyed due to the selling of these banned substance. There is an

alarming spike in the number of people buying and selling these contraband

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in the country especially in Punjab, which needs to be controlled in an

effective manner so as to minimise the said offence, if not to eradicate. This

country has one of the largest number of youths, a factor to power

economic growth, but an overwhelming majority of addicts are amongst

these youths, which has resulted in increase of crime and violence. The

increasing number of drug addicts day by day has resulted into an upsetting

situation. The role of operators, who are working from behind the scene,

also needs to be brought out as they are the actual offenders and for that

purpose custodial interrogation of the petitioner is must.

Keeping in view of the peculiar facts and circumstances of the

case, this Court is of the considered view that petitioner does not deserve

the concession of anticipatory bail under Section 438 Cr.P.C. in the present

case and, thus, the present petition stands dismissed.

                                               (NAMIT KUMAR)
06.01.2023                                        JUDGE
Neha

             Whether speaking/reasoned               :       Yes/No
             Whether reportable                      :       Yes/No




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