Punjab-Haryana High Court
Ramakant Thakur vs State Of Haryana on 16 January, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:006018
CRM-M-751-2025 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
241 CRM-M-751-2025
DATE OF DECISION: 16.01.2025
RAMAKANT THAKUR ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Ms. Punam Singh, Advocate for the petitioner(s).
Mr. B.S.Virk, Sr. DAG, Haryana.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 483 B.N.S.S. for
grant of Regular Bail to the petitioner in FIR No. 384 dated 07.11.2023
registered under Sections 20(b)(ii)(B) of NDPS Act, 1985 [Section 21(b)
(ii) (B) (C) and Section 29 NDPS Act, 1985 added later on] at P.S. Sector-
53, District Gurugram, Haryana (Annexure P-1).
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'To Mr. SHO Sahib, Police Station Sector 53, District
Gurugram, Jai Hind Mr., today on 07-11-2023, I am present in the
area of Police Station Saraswati Kunj Sector 53, Gurugram Crime
Investigation after receiving information from the informant of ASI
Jitendra 832/GGM, Constable Gautam 4308/GGM that the
informant informed that a person named Ramakant son of Jamun
Thakur, resident of village Fatehabad, Police Station Paru, District
Muzaffarpur, Bihar, who sells narcotics in Saraswati Kunj Sector
53, and today he is in a vehicle number BR06BR3940, white in
color, and is trying to sell the narcotic substance hashish. If a raid
is conducted immediately, the drug can be caught along with the
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person and as the information was credible, I prepared a report
under Section 42 NDPS and sent constable Gautam 4308/GGM to
the police station to inform the higher authorities. I also informed
gazetted officer Shri Dinesh Sharma, ETO and manager, police
station Sector 53 over the phone. I also informed a fellow
employee about the information and prepared a raiding party and I
stopped the passersbys and requested them to join the raid but
everyone expressed their helplessness and went to their destination
and due to lack of time, no notice could be given to anyone. I,
along with S.S. Sub-Inspector, fellow employee and confidential
informant, reached Saraswati Kunj Sector 53 where the informant
pointed towards the car number BR06BR3940 parked there from
about 30/40 steps ahead and told that a person named Ramakant is
sitting in this car. He has the narcotic substance hashish. On which
I dismissed the informant by giving properInstructions. And I,
along with my companion, reached the said parked vehicle and
checked it. There was a person sitting on the back seat of the
vehicle. When 1 overpowered him and asked his name and address,
he told me his name as Ramakant son Jamun Thakur, resident of
village Fatehabad, Thana Paru, District Muzaffarpur, Bihar, aged
45 years. I gave him a notice under 50 NDPS Act that Ramakant,
the above mentioned, is informed through this notice that there is a
suspicion of the presence of narcotic substances in your vehicle. It
is necessary to search you. You want your search to be done by a
gazetted officer or magistrate or by me. It is your legal right. As
per your wish, a gazetted officer/magistrate can be called on the
spot. Ramakant, after understanding the above mentioned notice in
his language, in his reply notice agreed to call a gazetted officer
on the spot to get his or his vehicle searched by a gazetted officer.
Ramakant and the witness signed the reply notice. After that, I
informed Inspector Rajendra Singh of Sector 53, Gurugram about
the entire situation through mobile phone and requested him to
inform the concerned gazetted officer about reaching the spot.
After some time, Mr. Dinesh Sharma of ETO, Gurugram arrived at
the spot. I informed ETO sir about the entire situation and gave
him notice under section 42 of the NDPS Act. ETO sir read the
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notice and introduced himself to the above arrested person.
Ramakant understood the notice in his own language and gave his
consent to the search of himself and his vehicle by ETO sir. After
that, ETO sir Mr. Dinesh Sharma searched the above arrested
Ramakant. No items were recovered from his body. When the white
plastic sheet kept under the seat behind the driver's seat was taken
out and checked, we found a narcotic substance called hashish
inside it. ETO sir and I smelled and checked it with our own
experience, and the substance appeared to be Charas, and
electronic scale was arranged and the drug Charas was weighed
along with the polythene, and the total weight including the
polythene came out to be 193 grams, about which Ramakant was
asked for a license or permit for keeping the above mentioned
narcotic substance, but Ramakant was unable to present license or
permit for the same. The recovered narcotics substance Charas
was wrapped along the polythene in a cloth, after that I, Sub-
Inspector Jitender put a stamp of JK and ETO Sir put a stamp of
MK. ETO sir took the stamp in his own authority after use and I
handed over my stamp to Ct. Gautam no. 4308/GGM. After this
ETO sir verified the parcel. Narcotic substance Charas was taken
into police custody through list of receipt of parcel. Constable
Gautam no. 4308/GGM has signed the list of receipt, which was
verified by ETO sir. The above mentioned Ramakant has committed
the crime of 20 (b) (ii) (B) NDPS Act by keeping 193 grams of
hashish in his possession, on which constable Gautam ►No.
4308/GGM is being sent to the police station to prepare the article
and to get the FIR registered. After registering the FIR, inform at
the spot with FIR number form and I ASI, am the complainant in
the present case, hence another investigation officer should be sent
for further investigation in the case. I ASI, am busy in investigation
at the spot Place- Saraswati Kunj Sec 53 GGM SD/- Jitendra
S.O.P.N. Police Station Sector 53 District Gurugram Date 07-11-
2023 Time 7.50 PM.'
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3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has submitted that the
alleged recovery of 193 grams of Charas at the first instance was effected
from the vehicle lying in white coloured plastic sheet, was beneath the
driver's seat whereas recovery of contraband i.e. 1049 grams charas has
been falsely fastened upon the petitioner and the same was recovered
from a tin shed which was neither owned, rented nor possessed by the
petitioner in any capacity including the tenant whatsoever. It is on that
account, the bail has been sought with further assertion that after filing of
the challan on 16.03.2024 and charges being framed on 18.07.2024, trial
is moving slowly as only 2 PWs out of total 33 PWs have been examined
till date. He further points out that the petitioner is not involved in any
other case, meaning thereby he is not a habitual offender.
On behalf of the State
On the other hand, learned State Counsel appearing on
advance notice, accepts notice on behalf of respondent-State and has filed
the custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for 1 year, 2 months and
4 days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that the
quantity involved in the present case is commercial in nature but is not in
a position to controvert the submissions made by learned counsel for the
petitioner.
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4. Analysis
Be that as it may, from the above discussion, it can be culled
out that the petitioner has already suffered sufficient incarceration i.e. 1
year, 2 months and 4 days, the part recovery i.e. 1049 grams of charas is
although doubtful and the evidence by the petitioner is still to be
established in this regard, antecedents of the petitioner are clean, meaning
thereby he is not a habitual offender, and as per the principle of the
criminal jurisprudence, no one should be considered guilty, till the guilt is
proved beyond reasonable doubt, whereas in the instant case, challan
stands presented on 16.03.2024 charges are framed opn 18.07.2024 and
out of 33 prosecution witnesses, only two PWs have been examined so
far which is sufficient for this Court to infer that the conclusion of trial is
likely to take considerable time and therefore, detaining the petitioner
behind the bars for an indefinite period would solve no purpose.
Reliance can be placed 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 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.
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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 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
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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 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
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
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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.
5. Decision:
In view of the aforesaid 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.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
16.01.2025
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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