Punjab-Haryana High Court
Soeb @ Mohammad Soeb vs State Of Haryana on 6 September, 2023
Neutral Citation No:=2023:PHHC:117263
2023:PHHC:117263
CRM-M-23793-2023(O&M) AND
CRM-M-15321-2023 (O&M)
212 (1st and 2nd case)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision: September 06, 2023
1. CRM-M-23793-2023 (O&M)
Soeb @ Mohammad Soeb
....Petitioner
versus
State of Haryana
....Respondent
2. CRM-M-15321-2023 (O&M)
Lakhpat
....Petitioner
versus
State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present:- Mr. Sandeep S. Majithia, Advocate for the petitioner
in CRM-M-23793-2023.
Mr. Balraj Gujjar, Advocate for the petitioner
in CRM-M-15321-2023.
Mr. Vikas Bhardwaj, AAG Haryana and
SI Navdeep No.D-5836, P.S. Special Cell, Delhi.
*****
ARUN MONGA, J. (ORAL)
Vide this common order, above-mentioned two bail petitions, arising out of
the same FIR, are being disposed of. For brevity, recitals/facts are from CRM-M-23793 of
2023.
2. After being declined bail by the trial Court, petitioners, before this Court seek
their release as undertrials in a case bearing FIR No.0108 dated 01.03.2022, registered under
Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS
Act') and Sections 25 and 27 of the Arms Act, 1959 (for short 'Arms Act'), at Police Station,
Hodal, District Palwal.
3. Per prosecution version, on 01.03.2022, ASI Rajesh Kumar along with other
police officials were on duty Hassanpur Chowk, Hodal, Palwal. They had secret information
that a truck bearing registration No. RJ-20-GB-8399 was being driven by Mohammad,
accompanied by his associate Ashif. They were en-route and were being piloted by a Verna
car with registration No. HR-96-3618. Inside the Verna car were Lakhpat (the petitioner in
Neutral Citation No:=2023:PHHC:117263
2023:PHHC:117263
CRM-M-23793-2023(O&M) AND
CRM-M-15321-2023 (O&M)
CRM-M-15321-2023), Soeb (the petitioner in CRM-M-23793-2023), Ash Mohd, and Toffik.
The confidential source further informed that these individuals were engaged in the
transportation of ganja patti. To intercept them, a temporary barricade was set up at Karman
Border, Hodal. An intimation was sent under Section 42 of the NDPS Act. After a while, the
Verna car arrived and was stopped. All four occupants were subdued, and the car was
secured separately under the supervision of a Head Constable. Subsequently, the truck with
registration No. RJ-20-GB-8399 arrived, and two individuals from the truck were also
apprehended. The driver identified himself as Mohammad, the son of Abdul, hailing from
Khedli Nanu, District Rajasthan, and the co-driver identified himself as Aashif, the son of
Bashir, from Babupur, Tehsil Hathin, District Palwal. A notice under Section 50 was issued,
and they requested that the search be conducted in the presence of a Gazetted Officer. Sh.
Sanjiv Nagar, Tehsildar, Hodal, was informed and arrived at the scene. Upon searching the
truck, 44 bags were discovered, concealed under coconuts, containing a total of 1369
kilograms and 300 grams of ganja patti, which was subsequently seized. The individual
seated in the driver's seat of the car identified himself as Soeb (the petitioner), the son of
Gore Khan, residing in Sultanpur, Tehsil Nagina, District Nuh. All other suspects, including
petitioner Lakhpat, were also taken into custody. Additionally, a pistol and three rounds were
found on the car's dashboard, which were duly sealed and confiscated.
An FIR was registered. Petitioners were arrested and they are in custody since 01.03.2022.
4. Petitioner in CRM-M-23793-2023 is a serving as an Assistant Sub Inspector in
Delhi Police. His counsel would contend that petitioner had sought permission from his
superior to leave the station to carry out a covert operation as an undercover. He further
contends that petitioner was enrolled in Delhi Police as a Constable and owing to his hard-
work and sincerity was given two out-of-turn promotions. Petitioner had secret information
about the contraband in question and after seeking permission from the Special Cell, New
Delhi, where petitioner was deployed, he left for Delhi, on 17.02.2022.
4.1. Learned counsel further submits that in such type of offences, petitioner had to get in
touch with various criminals so as to obtain information. He further argues that contraband in
question was originally dispatched from Orissa and petitioner was on a pursuit to crack the
case. He further points out that the permission dated 17.02.2022 is contained at Annexure P-
3.
Neutral Citation No:=2023:PHHC:117263
2023:PHHC:117263
CRM-M-23793-2023(O&M) AND
CRM-M-15321-2023 (O&M)
4.2. He further submits that petitioner was practically trapped and framed in the case in
hand. While he was in a bid to apprehend the truck in question, he was got apprehended by
his informer itself, the informer double crossed and got him apprehended by the Haryana
Police. He also contends that movement of contraband started from Orissa and had it reached
all the way to Haryana. Allegation against the petitioner is that he was piloting the said truck.
There is nothing on record to show that from where to where he was supposed to pilot the
truck and why would he pilot the truck in Haryana, especially when he had no links over
there.
4.3. No offence under the Arms Act is made out against the petitioner since he was
admittedly carrying and was apprehended with his official weapon. Nothing else was
recovered from him. The only link evidence, which is being relied upon by the prosecution is
that a week prior to the registration of case in hand, petitioner had a telephonic conversation
with one Asif i.e., the occupant of truck carrying alleged contraband. He would contend that,
if at all so, same was in his pursuit to nab them. It is also the allegation against the petitioner
that he was in possession of two other numbers i.e., 9093984190 and 8053765400, but none
of these numbers were purchased by the name of petitioner and are not in any way linked
with him, he would further contend.
4.4. Learned counsel for the petitioner in CRM-M-23793-2023 would further
contend that there is no material evidence that petitioner is having any concern with the other
co-accused as there was no transaction of any sort between them. Allegation against the
petitioner is only based on his disclosure statement and the same is not admissible in
evidence. He also contends that intimation regarding secret information was sent to the
senior officials, after registration of FIR in question. Secret information was received by S.I.
Rajesh Kumar, C.A. of C.I.A. Staff, Hodal, who is not entitled to conduct investigation. He
also submits that car in question does not belong to the petitioner. No recovery of any alleged
contraband or weapon was made from the person of the petitioner. One pistol and three live
cartridges were allegedly recovered from the dashboard of the car and the same cannot be
termed as a conscious possession. Learned counsel further contends that despite such a heavy
alleged recovery and having a prior secret information, no independent witness was joined by
the police.
Neutral Citation No:=2023:PHHC:117263
2023:PHHC:117263
CRM-M-23793-2023(O&M) AND
CRM-M-15321-2023 (O&M)
5. Learned counsel for the petitioner in CRM-M-15321-2023 would contend that
only allegation against the petitioner is that he was companion of co-accused, namely Soeb
@ Mohammad Sobeb, who is an ASI. He further contends that there is non-compliance of
Section 42 of the NDPS Act. He submits that alleged notice under Section 42 of NDPS Act
attached with the challan shows that same was for search of only the offending truck.No
notice for the search of other vehicle i.e., Varna car,was given. Allegedly contraband was
recovered from the truck in question. Petitioner was not found in conscious possession of
alleged contraband. There is no material evidence to show complicity of the petitioner with
the alleged contraband and involvement in commission of alleged offence, except disclosure
statement, which is per se not admissible evidence. He also contends that there is non-
compliance of Section 50 of the NDPS Act.
6. Learned counsels further contend that nothing is to be recovered from the
petitioners now and they are not required for further custodial interrogation. False
implication of petitioners cannot be ruled out. There is no likelihood of petitioners tampering
with evidence and/or influencing prosecution witnesses. Petitioners are not involved in any
other case.
7. On the other hand, learned State counsel opposes the bail petition. He submits
that petitioners have committed a serious offence. He further canvasses that commercial
quantity of contraband was recovered and rigors of Section 37 of NDPS Act are applicable in
this case. If released on bail, there is likelihood of petitioners fleeing from trial proceedings
and/ or tampering with evidence and influencing witnesses.
8. I have heard rival contentions of learned counsels for the parties and have
gone through the case file.
7. Vide order dated 07.08.2023 passed in CRM-M-23793-2023, on oral request
of counsel for the petitioner, ACP, Special Cell, Southern Ranges, Pushp Vihar, Saket, New
Delhi was made a party to the petition, and a report was sought with respect to averments
contained in the petition and whether the petitioner-Soeb had sought permission from his
superior to leave the station to carry out covert operation as an undercover. Likewise, a
specific report by the prosecution was also sought with regard to authenticity of document
contained at Annexure P-3, which reflects that Soeb had indeed sought permission on the
basis of secret information to go out of station in a private vehicle.
Neutral Citation No:=2023:PHHC:117263
2023:PHHC:117263
CRM-M-23793-2023(O&M) AND
CRM-M-15321-2023 (O&M)
7.1. Apropos, SI Navdeep, No.D-5836, P.S. Special Cell, Delhi is present in the
Court today. He has tendered an affidavit/ report dated 05.09.2023, which is taken on record
as Annexure 'X'. Copy thereof has been supplied to counsel opposite. Following stand has
been taken in the said report:-
"3. That the petitioner, on 17.02.2022 had informed to Inspector Shiv
Kumar (Team In-charge) that he had information about some Mewat based
wanted criminals indulging in drugs trafficking, ATM uprooting etc. He was
asked by Inspector Shiv Kumar to develop this information discreetly.
4. That the petitioner, Soeb @ Mohammad Sob had sought permission to
leave the station for developing secret information through proper channel as
per rule. (Annexure -P-3 in question)
5. That the petitioner, Soeb @ Mohammad Sob departed from this office
to go out of station vide DD No. 6 dated 17.02.2022 for developing secret
information after taking necessary permission. (True Copy of DD entry
annexed as Annexure - R-2/1 for kind perusal of this Hon'ble Court)
6. That the petitioner, Sob @ Mohammad Sob had used to brief Inspector
Shiv Kumar (Team In-charge) about the information gathered about the
Mewat based criminals/personnel who used to indulged in criminal activities
in Delhi NCR and adjoining States and Inspector Shiv Kumar used to guide
him as per law."
7.2. From the perusal of above, it is clearly borne out that in terms of Annexure P-
3, petitioner had intimated his superior and sought permission to leave the station for further
action based on secret information.
7.3. Further, pursuant to aforesaid order dated 07.08.2023 passed by this Court,
status report of learned Additional District and Sessions Judge-(I), Palwal has also been
placed on record, which is contained at Flag 'A'. The said report reveals that it is the
prosecution which has been delaying the trial as prosecution witnesses are not appearing for
recording their testimony as is borne out from the report ibid. Relevant of the same is
reproduced herein below:-
"On 07-07-2023, No PW were present. The case was adjourned to 25-
08-2023 for issuing bailable warrants of SI Rajesh Kumar, Kherun Nisha,
Sanjeev Nagar (Tehsildar) and Nodal Officer of Vodafone and Pw's at serial
No. 22, 23, 24 & 25 were also ordered to be summoned.
On 25-08-2023, two PW Sanjeev Nagar (Tehsildar) and SI Rajesh
Kumar were present and examined as PW5 & PW6. No other PW's were
present. An application for exemption of witness Kherun Nisha was filed
through her counsel stating that her mother-in-law was expired three days
before. The application was duly supported by affidavit. In view of the contents
of the application, the appearance of witness Kherun Nisha was exempted. It
was ordered to issued fresh bailable warrant against her. Witnesses Nodal
Officer JIO, Nodal Officer AIRTEL and Registration Clerk RTO were not
turned up despite being served personally and served through official. It was
ordered to issue bailable warrants against them. Bailable warrant issued
against Nodal Officer, Vodafone received back unserved. It was ordered to
issued fresh bailable warrant against him. Further, witnesses at serial No.13,
18, 24 & 28 were also ordered to be summoned for the date fixed, i.e. 05-10-
2023."
Neutral Citation No:=2023:PHHC:117263
2023:PHHC:117263
CRM-M-23793-2023(O&M) AND
CRM-M-15321-2023 (O&M)
7.4. On a Court query, learned State counsel submits that challan was filed way
back on 29.08.2022 and charges were framed on 05.09.2022. Investigation is complete and
petitioners are thus not required for custodial interrogation.
8. Bail allows an accused to maintain his freedom until his guilt or innocence is
determined. On a Court query, learned State counsel, on instructions from ASI Mahanand,
submits that out of total 27 witnesses, 05 have been examined so far. Trial is likely to take
long time as it is proceeding at a snail pace. Whereas, petitioners have already been
languishing in jail for the last more than 01 year and 06 months, being behind bars since
01.03.2022.
9. Petitioners are being kept in preventive custody merely on an unfounded
suspicion that if they are let out, they 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.
10. Offence allegedly committed by petitioners are of non-violent nature and in
that sense their release on bail is not a threat to society at large by committing any violent
crime. In any case, allegations against petitioners are matter of trial. At this stage, there
appears to be a reasonable ground that petitioners may not be guilty of the alleged offence.
They are not likely to commit any offence while on bail.
11. Petitioner-Soeb @ Mohammad Soeb is stated to be a 33-year old working in
Delhi Police. Petitioner-Lakhpat is stated to be 35-year old agriculturist. Being family men
and having fixed abode, it is unlikely that they pose any flight risk and/or will flee from the
trial proceedings.
12. Considering the overall scenario and without commenting on the merits of the
case, the instant petitions are allowed. I am of the view that no useful purpose would be
served to keep the petitioners in further preventive custody.
13. Accordingly, petitioners are ordered to be released on bail, in case not required
in any other case, on their furnishing bail bonds and surety bonds to the satisfaction of
Neutral Citation No:=2023:PHHC:117263
2023:PHHC:117263
CRM-M-23793-2023(O&M) AND
CRM-M-15321-2023 (O&M)
learned trial Court, where their cases are being tried and in case he/she is not available,
before learned Duty Judge, as the case may be.
14. In case, petitioners are found involved or gets involved in any offence while
on bail, the prosecution shall be at liberty to seek cancellation of their bail in the instant
cases.
15. Any observations made and/or submissions noted hereinabove shall not have
any effect on merits of the case as the same are for limited purpose of bail hearing alone and
learned trial Court shall proceed without being influenced with this order.
16. Learned trial Court is further directed to proceed in the matter as expeditiously
as possible and to take appropriate action, if warranted, in terms of the Standard Operating
Procedure (SOP) of the State as detailed in order/judgment dated 28.08.2023 passed by this
Court in IOIN-CRM-M-18507-2022 titled "Jagjit Singh@ Jaggi Vs. State of Punjab."
Guidelines and SOP were ordered to be circulated by this Court to learned Judges in the
District Judiciary in the States of Punjab, Haryana and UT Chandigarh.
17. Pending application(s), if any, shall also stand disposed of.
(ARUN MONGA)
JUDGE
September 06, 2023
mahavir
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
Neutral Citation No:=2023:PHHC:117263
