Punjab-Haryana High Court
Chander Shekhar Alias Chandrashekhar ... vs State Of Haryana on 13 November, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:148228
CRM-M-55145-2024 -1-
220
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-55145-2024
DECIDED ON: 13.11.2024
CHANDER SHEKHAR ALIAS CHANDRASHEKHAR KUMAR
.....PETITIONER
VERSUS
STATE OF HARYANA
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Parminder Singh Sekhon, Advocate
for the petitioner.
Mr. Chetan Sharma, DAG Haryana.
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 439 of Cr.P.C, has been
invoked for grant of regular bail to the petitioner in case FIR No. 03, dated
02.01.2024, under Section 18-B, 27-A and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'), registered
at Police Station Sadar Fatehabad, District Fatehabad.
2. Facts
Facts as narrated in the FIR reads as under:-
"To the SHO Police Station Sadar Fatehabad Jai Hind Yesterday
dated 01.01.2024 | ASI along with ASI Major Singh No.65/ FTB,
EASI Raghbir Singh No. 784/FTB ESI Rajender Prasad
No.158/FTB along with Laptop printer on a Govt. Vehicle
bearing registration No.HR-22-GV-7824 driven by EHC Ajay
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Kumar No.375/FTB were present at new bus stand Fatehabad
for prevention of intoxicating substance then secret informer
came to me and informed that three persons (from Bihar) whose
name are Rajesh Yadav, Vikas Kumar and Chander Shekhar, who
are opium supplier. Today some time ago I have seen them near
village Bhoda Hoshnak highway who were carrying heavy
quantity of opium in their Pithu bag if immediate search of three
persons would be conducted then from all three persons heavy
quantity of opium could be recovered. Finding information
credible, for informing the senior police officials a notice under
Section 42 of NDPS Act was prepared and get the report register
in the police station Sadar Fatehabad and with the duplicate
record and notice to the officer Sh. Kulwant, ESI Rajender
Prasad No.158/FTB was sent to the police station to inform HPS
Deputy Superintendent of Police Fatehabad. After informing
fellow employees about the informer, the ASI while searching the
people as per the information given by Government official and
reached the village Bhoda Hoshnak bus stand and saw three
persons sitting on the stone seats inside the bus stand and
talking to each other. After seeing the police vehicle suddenly got
up from the stone seats, I ASI on suspicion stopped the
Government vehicle and alighted from the Government vehicle
with the help of fellow officials apprehended all the three
persons and asked the reason why they were sitting at bus stand
in the night but they could not give any satisfactory reply. I ASI
turn by turn asked their name and their addresses. Then first
person disclosed his name Rajesh Yadav son of Ramesh son of
Arjun Village Itawa Police Station Dhangai, District Gya Bihar
who was tying pithu bag of grey colour on his shoulder and the
second persons disclosed his name Vikas Kumar son of Virender
Son of Lakhan resident of village Itawa, Police Station hangar
District Gaya Bihar who was also carrying Pithu bag of black
and coca cola colour on his shoulder and third person disclosed
his name Chander Shekhar son of Madan Mohan son of Nand
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Kishore Yadav Village Itawa Police Station Dhangai District
Gaya Bihar who was also carrying pithu bag of grey and blue
colour on his shoulder. On suspicion that Rajesh Yadav, Chander
Shekhar and Vikas abovesaid having some intoxicating
substance I have given my full introduction to Rajesh Yadav,
Chander Shekhar and Vikas abovesaid gave a notice under
Section 50 of NDPS Act "I Assistant Sub Inspector Kuldeep
Singh No.36/FTB Anti Narcotic Cell Fatehabad inform you
Rajesh Yadav son of Naresh son of Arjun Village Itawa Post
Office Patluka Police Station Dhangai District, Bihar through
this notice that I am having suspicion that you and your pith bag
hanged on your shoulder of grey colour having some
intoxicating substance therefore, it is necessary to conduct your
and your bag search. It is your legal right that if you want to
conduct yours and your bag search in front of any Gazetted
Official or Magistrate then they can called on the spot or for
conducting the search you could be produced before them along
with your bags. Give your consent." On which Rajesh Yadav
abovesaid after going through the notice given at my instance
gave reply to the notice "I Rajesh Yadav son of Naresh Kumar
son of Arjun Village Itawa Post of Office Patluka Police Station
Dhangai District Gaya Bihar that I have gone through and
understood the notice given at your instance I want to conduct
my search and the search of the pithu bag of the black colour
hanging on my shoulder through Gazetted Official by calling
him on the spot. Like this apprehended person namely Chander
Shekhar was also apprised the notice "I ASI Kuldeep Singh
No.36/FTB Anti Narcotic Cell Fatehabad inform you Chander
Shekhar Son of Madan Mohan son of Kishore Yadav Village
Itawa Post office Patluka Police Station Dhangai District Gaya
Bihar inform you through this notice that I am having suspicion
that you and your pithu bag hanging on your shoulder of grey
and blue colour having some intoxicating substance therefore, it
is necessary to conduct your and search of your bag. It is your
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legal right that if you want to conduct your search and the
search of your bag in front of any Gazetted Official or
Magistrate then they can called on the spot or you could be
produced before them for conducting the search, give your
consent." On which Chander Shekhar abovesaid have
understood the notice given at my instance and gave reply to the
notice with his consent "I Chander Shekhar son of Madan
Mohan son of Nand Kishore Yadav Village Itawa Post Office
Patluka Police Station Dhangai District Gaya Bihar gave reply
to the notice that I have undergone the notice given at your
instance I want to conduct my search and the search of pithu bag
of grey and blue colour which is hanging on my shoulder in front
of Gazetted Official by calling him on the spot. Like this
apprehended Vikas Kumar was also apprised the notice "I
Assistant Sub Inspector Kuldeep Sing No.36/FTB Anti Narcotic
Cell Fatehabad inform you Vikas Kumar son of Virender son of
Lakhan Yadav Village Itawa Post Office Patluka Police Station
Dhangai, District Gaya, Bihar inform you through this notice
that I am having suspicion that you and your pithu bag of black
and coca cola colour hanging on your shoulder having some
intoxicating substance. Therefore, it is necessary to conduct your
and your bag search you have a legal right that if you want to
conduct your and your bag search in front of any Gazetted
Official or Magistrate then they can called on the spot or for
conducting the search you could be produced before them, give
your consent." On which Vikas Kumar abovesaid after going
through the notice given at my instance gave reply to the notice
"I Vikas Kumar son of Virender son of Lakhan Yadav Village
Itawa Post Office Patluka Police Station Dhangai District Gaya,
Bihar have understood the notice given at your instance and I
want to conduct my search and the search of the pithu bag of
black and coca colour hanging on my shoulder in front of
Gazetted Official by calling him on the spot. On the notices and
consent notices, Rajesh Yadav, Chander Shekhar, Vikas Yadav
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abovesaid and witnesses have signed. After the proceedings of
notices and consent notices I have called from my mobile
No.87089- 80682 to duty officer Sh. Sharvan Kuma AETO
Fatehabad on his mobile No.94165-43843 at about 11:47 pm
and narrated the factual situation and requested him to come on
the spot. At about 12.15 am Sh. Sharwan Kumar AETO
Fatehabad on his Government vehicle Swift Dzire reached on
the spot and who was apprised by me with three notices and
three consent notices and produced Rajesh Yadav, Chander
Shekhar and Vikas Kumar abovesaid and the witnesses before
him. Who after giving his introduction and going through the
notices and consent notices interrogated Rajesh Yadav, Chander
rvikas Kumar abovesaid and the witnesses and directed me to
conduct the search of Rajesh Yadav, Chander Shekhar and Vikas
Kumar abovesaid and Pithu Bags of all three separately as per
rules I have tried the, passer byes to join the police proceedings
but every body has shown their inability and went away from the
spot. Thereafter, I have conducted the search of Rajesh Yadav
abovesaid as per rules then no intoxicating substance was
recovered from Rajesh Yadav thereafter, I have conducted the
search of the pithu bag of grey colour which was hanging on the
shoulders of Rajesh Yadav then in that one orange colour cloth
and one pant of blue colour in which one transparent polythene
bag opium was recovered. The recovered transparent polythene
bag of opium weighed from computerized weighing scale which
was laying in the investigation bag comes to 1 Kg 100 Grams of
opium including the transparent polythene bag. Thereafter, the
search of Chander Shekhar abovesaid was conducted as per
rules then no intoxicating substance was recovered from the
Chander Shekhar thereafter, the pithu bag of grey and blue
colour laying on the shoulder in which one pant of white colour
and one sky colour shirt in which one transparent bag of
polyethene was recovered and the same was weighed through
computerized weighing scale laying in investigating bag. Which
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comes to 1 Kg including the transparent polythene bag.
Thereafter, the search of Vikas Kumar abovesaid was conducted
as per rule then from the possession of Vikas Kumar no
intoxicating substance was recovered, thereafter, pithu bag of
black and coca colour which was hanging on the shoulder ore
shirt of light pink colour, one white colour sheet in which one
transparent polythene bag of opium was recovered which was
weighed through computerized weighing scale laying in
investigating bag then comes to 900 grams including the weight
of transparent polythene. The recovered three transparent
polyethene of opium were put in three plastic jars after
arranging the same and three bags of opium was converted into
parcel by putting the same into plastic jars and on the parcels I
affixed my seal KS separately and sample seal was separately
prepared and Sh. Sharwan Kumar AETO Fatehabad has affixed
his seal SP on three parcels of opium and sample seal was
prepared. They have taken into police custody three parcels of
opium and three bags of Rajesh Yadav, Chander Shekhar and
Vikas Kumar abovesaid along with their clothes by putting the
same, three parcels of opium and sealed plastic jars and sample
seal into police custody by preparing the seizure memo. On
seizure memo accused Rajesh Yadav, Chander Shekhar and
Vikas Kumar abovesaid and the witnesses have signed. I handed
over the seal after use to ASI Major Singh No.65/ FTB and Sh.
Sharan Kumar AETO Fatehabad has kept his seal with himself
after use and on seizure memo three parcels of opium, sample
seal was attested by Sh. Sharwan Kumar AETO Fatehabad at
the same time ESI Rajender Prasad No. 158/FTB after
registering the report of notice under Section 42 of NDPS Act in
police station sadar Fatehabad came on the spot on
interrogation all three accused Rajesh Yadav, Chander Shekhar
and Vikas Kumar have disclosed that the recovered opium from
us are joint and we used to sell jointly accused Rajesh Yadav,
Chander Shekhar and Vikas Kumar abovesaid have committed
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the offense under Section 18(b), 61-85 of NDPS Act by keeping
in their possession total 3 Kg of opium."
3. Contentions:
On behalf of the petitioner
Learned counsel for the petitioner submits that the petitioner has been
falsely implicated in the present case on the basis of disclosure statement suffered
by co-accused Rajesh Yadav. It is asserted that the petitioner was neither named as
an accused in the secret information nor any recovery has been effected from his
conscious possession. He further submits that the co-accused namely Jageshwar
Yadav, who disclosed and admitted the sale of opium to co-accused Rajesh Yadav,
have already been granted the concession of regular bail by this Court vide order
dated 24.09.2024 (Annexure P-2) passed in CRM-M-44517-2024.
On behalf of the State
Learned State counsel has filed the custody certificate of the petitioner,
which is taken on record. He prays for dismissal of the present petition stating that 1
kg of opium has been recovered from the present petitioner, therefore, does not
deserve the concession of regular bail at this stage.
4. Analysis
Admittedly, the recovery effected from the present petitioner i.e., 1 kg
of opium is non-commercial in nature and moreover the case of the prosecution is
highly doubtful as it is unlikely that a person collected opium in the manner as
alleged in the FIR from an abandoned jungle adjoining his village added with the
fact that the petitioner has suffered incarceration of 10 months and 10 days and is
not involved in any other case, wherein conclusion of trial shall take considerable
time as out of 19 prosecution witnesses, none has been examined after framing of
charges on 10.10.2024 so far, no useful purpose would be served by keeping the
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petitioner behind bars for uncertain period, wherein "bail is a rule and jail is an
exception" and it would also violate the principle of right to speedy trial and
expeditious disposal under Article 21 of Constitution of India, as has been time and
again discussed by this Court, while relying upon the judgment of the Apex Court
passed in Dataram Singh vs. State of Uttar Pradesh & Anr. 2018(2) R.C.R.
(Criminal) 131. 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
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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 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 India, 2017 (13) SCALE
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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 and
fundamental principle of law that right to speedy trial is a part of reasonable, fair
and just procedure enshrined 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, reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
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5. DECISION:
In view of the discussions made hereinabove, the petitioner is hereby
directed to be released on regular bail on 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)
13.11.2024 JUDGE
Meenu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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