Punjab-Haryana High Court
Talim vs State Of Haryana on 1 August, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:098479
CRM-M-35918-2024 -1-
227
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-35918-2024
DECIDED ON: 01.08.2024
TALIM
.....PETITIONER
VERSUS
STATE OF HARYANA
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Saleem Ahmed, Advocate
for the petitioner.
Mr. Chetan Sharma, DAG, Haryana.
SANDEEP MOUDGIL, J (ORAL)
1. Relief sought
The jurisdiction of this Court has been invoked for the second
time under Section 439 Cr.P.C. for grant of regular bail to the petitioner in
FIR No.115, dated 01.03.2024, under Sections 20 & 29 of the NDPS Act,
1985, registered at Police Station Sector 8, Faridabad, District Faridabad.
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
"To SHO, Police Station Sector-8, Faridabad Jai Hind.
Today, I, SI along with HC Ramesh Kumar 1703, HC
Rohit Kumar 2578 were present for crime and patrolling
duty in private vehicle at Mathura, Delhi Road, Bata
Chowk, Faridabad. That secret informer informed that
Tasleem son of Idrish resident of U.P. at present tenant at
Ram Nagar Colony, Faridabad is in the business of
selling contraband Ganja. That Talim would come from
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Ramnagar Colony to sell contraband by filling the same
into a bag. If Nakabandi be conducted at Bata Bridge
towards Delhi side near Ram Nagar Colony then Talim
might be apprehended along with Ganja. That believing
upon the information I, ASI prepared a notice U/s 42
NDPC Act and sent HC Rohit Kumar 2578 to police
station, Sector-8 Faridabad for taking permission for
raid and HC Rohit Kumar returned back after 25 minutes
and handed over to me ASI the permission to raid and to
register rapt thereafter. That I, ASI informed the fellow
officials regarding the situation and by taking the secrete
informer, we just reached at the rough way of Ramnagar
Colony, that one young person was seen to come by
taking the bag on his shoulder and by seeing the police
party in front of him, he turned back and started walking
speedily. At the same time, secrete informer told by
signalling that the boy who turned back having bag, he is
the Talim. That after leaving the secrete informer, I, ASI
with the help of fellow officials apprehended the person
along with bag and on telling the name and address, he
told his name and address as Talim son of Idrish resident
of House No.284, behind the Sonkiya Mil Krishna Vihar
Colony, Kosi Kalan, Police Station Kosi District Mathura
Uttar Pardesh presently tenant at House of Dinesh
Nagar, Ram Nagar Colony, Sector-8, Faridabad aged 23
years. On having doubts of Ganja in black and orange
bag carry by apprehended person, Talik, I ASI handed
over the notice 50 NDPS to the Talim and told that you
have the right under NDPS Act that you can search you
and your bag from any gazette officer or Duty Magistrate
and you give your reply in writing regarding search. On
which Talim above has given in writing to search him and
his bag from Duty Magistrate. On which I, ASI informed
Shri Gaurav Jolani, Excise Taxation Officer (EAST)
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Faridabad to reach at the spot from my mobile no.
9812254236 to his mobile no. 7838974976 and after
about 25 minutes Duty Magistrate Shri Gaurave Jolai,
Exercise Taxation Officer (EAST) reached at the spot,
who enquired the Talim and seen the Notice U/s 50 NDPS
Act, thereafter Duty Magistrate searched me ASI and
fellow officials and directed me to search Talim and bag.
That according to the directions of Duty Magistrate,
search of Talim and bag was got done and during search,
contraband Ganja was found in two polythene placed in
the bag placed at the shoulder of Talim. Duty Magistrate
has asked Talik regarding license of contraband Ganja
and he could not submit any license permit and to
measure the contraband Ganja with the electric weighing
machine placed in the vehicle, total weight of Ganja was
found 4 Kg. 635 gram, Palanda of which was prepared
by putting the same in the polythene and further placed in
the bag and stamped with MS stamp. After using the
stamp, the same was handed over to witness HC Rohit
Kumar 2578. Duty Magistrate stamped the Palanda with
R$ stamp and after using the stamp, he kept stamp with
him and thereafter recovered Ganja was taken into the
possession of the police as evidence. Accused and witness
appended their signatures on the recovery memo. Passer-
by was asked to be witness but all went away by showing
their reasonable causes. That accused by keeping the
contraband Ganja with him without license permit has
committed offence U/s 20-61-85 NDPS Act therefore HC
Ramesh Kumar 1703 is sending to the police station,
sector-8 for registration of FIR. After registration of FIR
number be informed and another IO be sent at the spot.
1, ASI along with officials, recovered material and
accused is present at the spot. At Khali Madan, Ram
Nagar Colony, Faridabad."
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3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that as per the
prosecution story, the alleged contraband i.e. 4 kg 635 gms of ganja was
recovered from the present petitioner, which is of non-commercial quantity.
He further contends that the co-accused of the petitioner, namely, Arjun has
been granted the concession of regular bail by this Court vide order dated
12.07.2024 passed in CRM-M-32139-2024.
On behalf of the State
On the other hand, learned State counsel has produced the
custody certificate of the petitioner today in Court, which is taken on record.
He seeks dismissal of the instant petition on the ground that the contraband
has been recovered from the conscious possession of the petitioner.
4. Analysis
From the above case it can be culled out that the role attributed
to the petitioner is that recovery of non-commercial quantity of contraband
was effected from the present petitioner, moreso, the petitioner is behind the
bars for last 05 months and 01 day; challan stands presented on 25.04.2024;
charges are yet to be framed and the examination of total 16 prosecution
witnesses are yet to commence, which is suffice enough for this Court to
infer that the conclusion of trial will take a long time for which the petitioner
cannot be detained behind the bars for an indefinite period.
Reliance can be made upon the judgment of the Apex Court
rendered in "Dataram versus State of Uttar Pradesh and another", 2018(2)
R.C.R. (Criminal) 131, wherein it has been held that the grant of bail is a
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general rule and putting persons in jail or in prison or in correction home is
an exception. Relevant paras of the said judgment is reproduced as under:-
"2. A fundamental postulate of criminal jurisprudence is
the presumption of innocence, meaning thereby that a
person is believed to be innocent until found guilty.
However, there are instances in our criminal law where a
reverse onus has been placed on an accused with regard
to some specific offences but that is another matter and
does not detract from the fundamental postulate in
respect of other offences. Yet another important facet of
our criminal jurisprudence is that the grant of bail is the
general rule and putting a person in jail or in a prison or
in a correction home (whichever expression one may
wish to use) is an exception. Unfortunately, some of these
basic principles appear to have been lost sight of with the
result that more and more persons are being incarcerated
and for longer periods. This does not do any good to our
criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is
entirely the discretion of the judge considering a case but
even so, the exercise of judicial discretion has been
circumscribed by a large number of decisions rendered
by this Court and by every High Court in the country. Yet,
occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do
on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to
be considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it
necessary to arrest an accused person during
investigations, a strong case should be made out for
placing that person in judicial custody after a charge
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sheet is filed. Similarly, it is important to ascertain
whether the accused was participating in the
investigations to the satisfaction of the investigating
officer and was not absconding or not appearing when
required by the investigating officer. Surely, if an accused
is not hiding from the investigating officer or is hiding
due to some genuine and expressed fear of being
victimised, it would be a factor that a judge would need
to consider in an appropriate case. It is also necessary
for the judge to consider whether the accused is a first-
time offender or has been accused of other offences and if
so, the nature of such offences and his or her general
conduct. The poverty or the deemed indigent status of an
accused is also an extremely important factor and even
Parliament has taken notice of it by incorporating an
Explanation to section 436 of the Code of Criminal
Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting
section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be
adopted by a judge, while dealing with an application for
remanding a suspect or an accused person to police
custody or judicial custody. There are several reasons for
this including maintaining the dignity of an accused
person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the fact
that there is enormous overcrowding in prisons, leading
to social and other problems as noticed by this Court in
In Re-Inhuman Conditions in 1382 Prisons, 2017(4) RCR
(Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.)
408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has
been elaborately and lucidly explained in a recent
decision delivered in Nikesh Tara chand Shah v. Union of
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India, 2017 (13) SCALE 609 going back to the days of
the Magna Carta. In that decision, reference was made to
Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 in which it is observed that it was held way back in
Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that
bail is not to be withheld as a punishment. Reference was
also made to Emperor v. Hutchinson, AIR 1931
Allahabad 356 wherein it was observed that grant of bail
is the rule and refusal is the exception. The provision for
bail is therefore age-old and the liberal interpretation to
the provision for bail is almost a century old, going back
to colonial days.
7. However, we should not be understood to mean that
bail should be granted in every case. The grant or refusal
of bail is entirely within the discretion of the judge
hearing the matter and though that discretion is
unfettered, it must be exercised judiciously and in a
humane manner and compassionately. Also, conditions
for the grant of bail ought not to be so strict as to be
incapable of compliance, thereby making the grant of
bail illusory."
Therefore, to elucidate further, this Court is conscious of the
basic fundamental law that right to speedy trial is a part of reasonable, fair
and just procedure guaranteed under Article 21 of the Constitution of India.
This constitutional right cannot be denied to the accused as is the mandate of
the Apex court in "Hussainara Khatoon and ors (IV) v. Home Secretary,
State of Bihar, Patna", (1980) 1 SCC 98. Besides this, reference can be
drawn upon that pre-conviction period of the under-trials should be as short
as possible keeping in view the nature of accusation and the severity of
punishment in case of conviction and the nature of supporting evidence,
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reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant.
5. DECISION:
In view of the discussions made hereinabove, the petitioner is
directed to be released on regular bail on his furnishing bail and surety bonds
to the satisfaction of the trial Court/Duty Magistrate, concerned.
In the afore-said terms, the present petition is hereby allowed.
However, it is made clear that anything stated hereinabove shall
not be construed as an expression of opinion on the merits of the case.
(SANDEEP MOUDGIL)
01.08.2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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