Punjab-Haryana High Court
Phatte Singh vs State Of Haryana on 15 January, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
POOJA SHARMA
2024.01.16 10:53
CRM-M No.1975 of 2024 (O&M) -1- 2024:PHHC:004796
108 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.1975 of 2024 (O&M)
Date of decision : 15.01.2024
PhatteSingh ee Petitioner
versus
StateofHaryana ae Respondent
CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN
ke
Present :- Mr. Ankit Joshi, Advocate
for the petitioner.
Mr. Gaurav Bansal, D.A.G., Haryana.
ke
PANKAJ JAIN, J. (ORAL)
The petitioner has prayed for grant of pre-arrest bail in FIR
No.322 dated 07.12.2023 registered for offence punishable under
Sections 18, 27-A, 29 of N.D.P.S. Act at Police Station Sadar Tohana,
District Fatehabad.
2. As per the contents of the FIR, it has been alleged as under:-
"...10, The Station House Officer, Police Station Sadar
Tohana. Hai Hind. Today I ASI with ESI Rajender Prasad
No.158/FTB, EASI Raghubir Singh No.784/FTB, having
personal laptop, printer and investigation kit and on
government vehicle No.HR22GV-7824 with driver HKRNL
Rajbir with regard for the prevention of narcotic substance
reached some ahead to Durga College from Fatehabad to
Bhuna via Kullan, Jamalpur Shekhan, then in front of Mahabir
Motor Garage, a person was seen standing on the right side of
the road with a backpack hanging on his shoulders, who
suddenly stood by turning his face after seeing the police
vehicle in front. On the basis of suspicion, I ASI stopped the
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CRM-M No.1975 of 2024 (O&M) -2- 2024:PHHC:004796
government vehicle, got down along with my fellow employee
and controlled that person. When asked the reason for turning
away after seeing the police vehicle, he did not give any
satisfactory answer. When I ASI asked his name and address,
he told his name as Shyam Das alias Shyamu son of Lalu Das
son of Puran Das, resident of Pipalda Tehsil Gangdhar
District Jhalawar Rajasthan.
Having strong suspicion of upon controlled Shyam
Das allas Shyamu that he had any narcotic substance, I
introduced myself and gave a notice under Section 50 NDPS
ACT to Shyam Das alias Shyamu that "I, Assistant Sub
Inspector Major Singh No. 65/FTB Anti Narcotic Cell,
Fatehabad, inform you Shyam Das alias Shyamu son of
Laludas son of Puran Das, resident of Pipalda Tehsil
Gangdhar District Jhalawar, through this notice that I have
doubt of having some narcotic substance in your and in brown
color bag hanging on your shoulder, hence it is necessary to
search you. You have the legal right that if you want to get
your search done in front of a Gazetted Officer or Magistrate,
then he can be called on the spot or you can be produced
before him for search, you express your wish". On which
Shyam Das alias Shyamu said after thoroughly reading and
understanding the notice given by me, he wrote his consent
notice that I, Shyam Das alias Shyamu son of Laludas son of
Puran Das, resident of Pipalda Tehsil Gangdhar District
JShalawar, I have fully read and understood the notice given by
you, I want to get search myself and my brown bag hanging on
my Shoulder by any gazetted officer on the spot. I want to get it
done by calling them on the spot for search. Shyam Das alias
Shyamu said and the witnesses put their signatures on the
notice and consent notice. After the proceedings of notice and
consent notice, I contacted Duty Officer Shri Vikas Kumar
Naib Tehsildar Fatehabad on mobile number 9034474727 at
1.10 PM from my mobile number 98125156065, informed
about the situation and requested him to reach on the spot. At
POOJA SHARMA
2024.01.16 10:53
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CRM-M No.1975 of 2024 (O&M) -3- 2024:PHHC:004796
2.00 PM, Shri Vikas Kumar Naib Tehsildar Fatehabad reached
the spot in his car Creta. To whom I gave notice and consent
notice and presented the arrested Shyam Das alias Shyamu
and witnesses before him. Who introduced himself, after
studying the notice and consent notice, after interrogating
controlled Shyam Das alias Shyamu and witnesses, directed me
to carry out the search of said Shyam Das alias Shyamu and
his backpack as per the rules. I wanted to join the passersby in
proceedings, but all left from the spot by stating their
compulsions. Then I carried out the search of arrested Shyam
Das alias Shyamu as per rules, then no narcotics substance
recovered from above Shyam Das alias Shyamu, then carried
out the search of brown color backpack hanging on shoulder
by pulling out, then in the lowest pocket of the bag, a white
colored turban with red and green lines was found, under
which opium was found in a transparent polythene bag. Then
weighted the recovered opium lying in polythene bag on
computerized weighing machine lying in investigation kit, then
found 1 Kilo 150 Gram opium alongwith polythene bag.
Prepared parcel by putting the recovered opium alongwith
polythene bag and white turban in same bag and I duly
stamped with my stamp MS and prepared sample seal
separately and Vikas Kumar Naib Tehsildar Fatehabad also
duly stamped the same with his stamp VK and prepared sample
seal and I have taken in police possession the duly stamped
parcel of opium, bag and turban with sample seal as evidence
through seizure memo. On seizure memo accused Shaym Dass
alias Shyamu above and witnesses marked their respective
signatures. I handed over the stamp after use to keep as
evidence to EASI Raghubir Singh No.784/FTB and Vikas
Kumar Naib Tehsildar Fatehabad kept the stamp after use with
him and Vikas Kumar Naib Tehsildar Fatehabad attested the
seizure memo, parcel of opium, sample seal. Accused Shaym
Dass alias Shyamu above has committee offence under Section
15-61-85 NDPS Act by keeping in his possession 1 Kilo 150
POOJA SHARMA
2024.01.16 10:53
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POOJA SHARMA
2024.01.16 10:53
CRM-M No.1975 of 2024 (O&M) -4- 2024:PHHC:004796
Gram opium. Upon which by writing note is being sent to
police station to register case through ESI Rajender Prasad
No.158/FTB. After registration of case, case number may be
informed and for further investigation of the case another
authorized investigating officer may be sent on the spot. I am
present on the spot. Place of crime - Tohana Road Area
Jamalpur Shekhan Sd-ASI Mejor Singh No.65/FTB Anti
Narcotics Cell Fatehabad Dated 07.12.2023 Mob.
No.9812515606 At 3.10 PM"
3. Learned counsel for the petitioner does not dispute that co-
accused namely Shyam Das alias Shyamu was apprehended and recovery
of Narcotic Drug was made from them. Shyam Das @ Shyamu suffered
a disclosure wherein the petitioner has been specifically named. He
submits that the petitioner cannot be nominated merely on the basis of
disclosure and such disclosure suffered by the co-accused cannot be
relied to drive home offence against him. Reliance is being placed upon
the law laid down by the Apex Court in Tofan Singh Vs. State of Tamil
Nadu, (2021) 4 SCC 1.
4. I have heard learned counsel for the parties and have gone
through records of the case.
5. Even though recovery has not been made from the petitioner
but it has come on record that recovery effected from the co-accused
would prima-facie fall within the commercial quantity as notified under
the Act. Benefit of Tofan Singh's case (supra) also cannot be extended
at this stage while considering pre-arrest bail of petitioner in view of
State of Haryana vs. Samarth Kumar, 2022 SCC Online SC 2087
wherein the Apex Court held as under :-
"sé,
XX XX XX
&. In cases of this nature, the respondents may be able to take
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CRM-M No.1975 of 2024 (O&M) -5- 2024:PHHC:004796
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.
XX XX XX
6. In view of the aforesaid, no ground to grant pre-arrest bail to
the petitioner is made out. Consequently, the same is ordered to be
dismissed.
7. Needless to say nothing recorded herein above should be
construed as an expression on merits of the case.
(PANKAJ JAIN )
JUDGE
January 15, 2024
ashish
Whether speaking/reasoned Yes
Whether Reportable : No
POOJA SHARMA
2024.01.16 10:53
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