Punjab-Haryana High Court
Ajay vs State Of Haryana on 25 March, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:040439
CRM-M-15050-2025 -1-
225
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-15050-2025
DECIDED ON: 25.03.2025
AJAY
.....PETITIONER
VERSUS
STATE OF HARYANA
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Sahil Gupta, Advocate for the petitioner.
Mr. Surender Singh Pannu, Addl. A.G., Haryana.
SANDEEP MOUDGIL, J (ORAL)
1. Relief sought
The jurisdiction of this Court has been invoked under Section
483 of The Bharatiya Nagarik Suraksha Sanhita, 2023 seeking grant of
regular bail to the petitioner in case FIR No. 211 dated 24.07.2024
(ANNEXURE P-1), under Sections 18(c) and 29 of Narcotic Drugs and
Psychotropic Substances Act, 1985 and Section 238(a) of BNS, 2023
(Section 29 NDPS Act and Section 238(a) of BNS added lateron), registered
at PS Julana, District Jind, Haryana.
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
The Station House Officer Police Station Julana Jai Hind.
Today I PSI along with EASI/HC Rajesh Kumar 386, HC
Vijay 108, Constable Ankit 484, Constable Sanjeet 240 along
with personal laptop and printer in regard to patrolling and
enquiry of crime travelling in official vehicle bearing
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registration number HR31-CV-5747 driver EASI/C Vinod 581
was present at Julana near Mali railway gate when special
informer came to I PSI and informed that two young boys jai
Bhagwan son of Jagbir resident of village Putthi wearing
white shirt and black pants and another boy Manjit son of
Suresh resident of village Devarang who is wearing black T-
shirt and blue jeans pants and carrying narcotics in back
packs on their shoulders are standing on village Kamach
Kheda road some distance in front of the temple built on
Julana-Mali road waiting to sell drugs to a customer. If
immediate raid is done the above young boys can be subdued
with drugs. Since the information is confirmed, the PSI has
prepared a notice 42 NDPS Act and sent it to police station in
the hands of Constable Ankit No.484 for information. Time is
03.20 PM. Then I informed my fellow employees about the
informant. PSI Amit along with colleagues travelling in
official vehicle reached in front of temple on Julana-Mali
Road on Bunch Kamav Kheda Road at a distance of around
800 meters and saw two boys standing near the room
constructed as tada informer who on seeing the police party
coming towards them started walking briskly towards Village
Kamach Khera side and PSI Amit overpowered both the boys
with the help of colleagues and asked them their names and
addresses then the first boy told his name to be Jay Bhagwan
son of Jagbir resident of Village Putthi District Hisar and
second boy told his name to be Manjit son of Suresh resident
of Village Dewarar District jind on whichon them having
some narcotic substance with them PSI Amit while giving his
introduction to the boys caught gave the separate notices Us
50 NDPS ACT to both the boys that I PSI Amit Detective Staff
Jind inform you through notice that you Jay Bhagwan son of
Jagbir resident of Village Putthi District Hisar and Manjit
son of Suresh resident of Village Dewarar District Jind are to
be searched in connection with drugs on which you have the
legal right that duty magistrate or gazetted officer could be
called on te the spot for doing the search of yours as well as
of the back packs or you could be presented along
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with your back packs to them for search. Clear your stance in
regard to search. The accused persons Jay Bhagwan and
Manjit aforesaid and the witnesses affixed their respective
signatures on the notices. Then the accused persons Jay
Bhagwan and Manjit after reading the notices U/s 50 NDPS
Act given by PSI Amit and ater understanding the same
accused Jai Bhagwan aforesaid got his reply to the aforesaid
notice recorded that I Jai Bhagwan son of Jagbir resident of
Village Putthi District Hisar have read and understood the
notice given by you PSI Amit Detective Staff Jind. I want to
call a gazetted officer and conduct a search in front of him for
the purpose of searching me and my backpack in relation to
narcotics. Reply notice was recorded. The reply notice was
signed by the accused Jai Bhagwan the aforesaid and the
witness. Then the said accused Manjit filed his answer notice
that I Manjit son Suresh village Devrad District Jind have
read and understood the notice given by you PSI Amit
Detective Staff Jind. I want to call a gazetted officer and
conduct a search in front of him for the purpose of searching
me and my back passkelated to narcotics. Answer notice was
recurded. The reply notice was signed by the accused Manjeet
and the witness. At 04.40 PM, after getting the daily diary
report of notice 42 NDPS Act has appeared from Julana
police station, who has placed the notice 42 NDPS Act
duplicate daily report DDR NO.28 at 04.10 PM dated
24.07.2024 before me. Then from my mobile number
9416533756, from the list of gazetted officers appointed by
District Deputy Commissioner Jind, I called up on the mobile
no. 99118-86773 Balram Jakhar Naib Tehsildar Jind was
contacted again and again, which could not be contacted, on
which I spoke to other officials of the District Deputy
Commissioner, Jind, and contacted Mr. Balram Jakhar Naib
Tehsildar Jind on his mobile number 9650555927 at 06.04
PM, informing him of the facts and requesting himem to
arrive on time. After waiting Mr. Balram Jakh Naib Tehsildar
Jind arrived at the spot at 06.52 PM along with his staff car.
The passersby were asked to be witnesses who after
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explaining their compulsions went away from the spot without
stating their names and addresses. Then I explained the facts
orally to the gazetted officer Mr. Balaram Jakhar and
presented notice 50 NDPS ACT, reply notice 50 NDPS ACT,
arrested accused persons Jai Bhagwan and Manjit to him,
who after SEEN the notice 50 NDPS ACT and reply notice 50
NDPS ACT, after searching me according to my rules, without
leaving any evidence, issued orders to search the arrested
accused persons Jai Bhagwan and Manjit. Then, according to
the order of the gazetted officer Mr. Balram Jakhar, I brought
the search of the accused Jai Bhagwan into effect then
according to the rules, no narcotic substance was found, then
I searched the back pack of the said accused Jai Bhagwan's
shoulder, colored black, brand AIR diamond, and 3 packets
wrapped with tape were found inside the bag which I removed
the tape and checked then as per my experience and from the
smell of the packets opium was recovered. The weight of the
three packets was weighed on computerised scale then the
weight came out to be 03 KGS and 043 Grams packed with
polythene. Then I search of the accused Manjit into effect as
per rules then no narcotic substance was recovered from him
then I searched the back pack of the said accused Manjit's
shoulder, colored black, brand AIR diamond, and 2 packets
wrapped with tape were found inside the bag which I removed
the tape and checked then as per my experience and from the
smell of the packets opium was recovered. The weight of the
two packets was weighed on computerised scale then the
weight came out to be 2 KGS and 002 Grams with polythene.
Then I put the pure opium packets recovered from the accused
persons Jai Bhagwan and Manjeet in their back packs along
with polythene and prepared 2 different cloth pads and sealed
both pads with my seal AK/3 and sample seal was prepared
and Mr. Balaram Jakhar sealed both pads of opium and
sample seal with his seal VS/1 and after the seal kept the
stamp with himself. Both the seized opium wrapped in
polythene with all stamps AK/3 and VS/1 sample seal were
taken into possession by the police through Files as evidence
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on which accused persons Jai Bhagwan and Manjeet the said
witnesses signed their respective signatures and Mr. Balram
Jakhar verified exhibits of Opium and files. I have submitted
the sample stamp after my stamp to EASI/HC Rajesh Kumar
386. During the seizure of opium, I made a videography by
policeman Sanjit 240 from my mobile phone. The said
accused persons Jai Bhagwan and Manjeet have committed
the crime under Section 18-C/61/85 NDPS ACT by keeping
opium in their possession, therefore the complaint is being
sent in the hands of Constable Sanjeet No.240
to the police station for getting a case registered. The FIR
number be informed after being registered and another
investigating officer be sent to the spot for doing further
investigation. IPSI along with colleagues along with the
accused Jai Bhagwan and Manjit and the case property am
present on the spot. At Near Temple Kamach Khera Road
Village Desh Khera."
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that the petitioner is
at parity with co-accused Shubham, who has already been granted the
concession of regular bail by this Court vide order dated 04.03.2025 passed
in CRM-M-10903-2025. It has been contended on behalf of the petitioner
that he is a man of clean antecedents as he is not involved in any other case.
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 does not controvert the above-said fact and seeks dismissal of the instant
petition on the ground that the petitioner and other co-accused persons had
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been involved in bringing 20 kgs of opium from Jodhpur and the quantity of
recovered contraband is commercial in nature.
4. Analysis
Be that as it may, considering the custody period i.e. 07 months
and 11 days for which the petitioner has suffered incarceration; the petitioner
is at parity with co-accused Shubham, who has already been granted the
concession of regular bail by this Court vide order dated 04.03.2025 passed
in CRM-M-10903-2025; the petitioner is not a habitual offender as he is not
involved in any other case, as is evident from custody certificate in addition
to the fact that investigation is complete, challan stands presented to Court
on 16.01.2025, charges have been framed on 06.02.2025 and out of total 28
prosecution witnesses none has been examined so far, which is suffice for
this Court to infer that the conclusion of trial will take long time for which
the petitioner cannot be detained behind the bars for an indefinite period.
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
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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 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
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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
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."
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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.
5. RELIEF:
In view of the discussions made hereinabove, the petitioner is
hereby directed to be released on regular bail on him 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)
25.03.2025 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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