Dismissed

Ramesh Kumar v. State of Haryana

Punjab & Haryana HC22 Aug 2023CRM-M/1770/2023

Case brief

AI extract

What is this about?

High Court of Punjab and Haryana considered bail application under Section 439 CrPC for commercial quantity NDPS offence. Court held Section 37 applies and burden is on petitioner. Bail dismissed as burden not discharged. Order expedited trial within three months with strict conditions on adjournments.

What did the court decide?

Bail application dismissed. Trial court directed to conclude trial by Dec 31, 2023 with prosecution evidence completed by Nov 30, 2023.

Ramesh Kumar Vs State of Haryana — Narcotics (NDPS) | Punjab & Haryana HC (2023)

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CRM-M-1770-2023

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-1770-2023 Reserved on: 11.08.2023 Pronounced on: 22.08.2023

Ramesh Kumar

...Pe��oner

Versus

State of Haryana …Respondent

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CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Mr. Kuldeep Sharma, Advocate for the pe��oner.

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Mr. Manish Bansal, Sr. D.A.G, Haryana.

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****

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ANOOP CHITKARA, J.

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FIR No.	Dated	Police Sta�on	Sec�ons
363	09.06.2021	Rohtak City,Rohtak	20 of NDPS Act

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The pe��oner incarcerated for viola�ng the above-men�oned provisions of

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Narco�cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap�oned above, on the allega�ons of possession of commercial quan�ty of 2 Kg. 800 grams of Charas, has come up before this Court under Sec�on 439 CrPC seeking bail.

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In paragraph 17 of the bail pe��on, the accused declares that he has no criminal antecedents.

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The pe��oner contends that the pre-trial incarcera�on would cause an irreversible injus�ce to the pe��oner and family.

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While opposing the bail, the conten�on on behalf of the State is that the

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quan�ty of contraband involved in the case falls in the commercial category.

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REASONING:

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The prosecu�on’s case is that on 9.06.2021 a secret informa�on was received that accused Pushpa and her husband Ramesh are carrying Charas on scooty . On the basis of the informa�on the police reached the place. On being searched, recovery of 2kg 800 grams of Charas was recovered. The pe��oner alleges in the pe��on that there is a CCTV footage showing a police official carrying a polythene bag towards the pe��oner’s house and claims that the recovery was planted against him. Despite the allega�ons made by the pe��oner no official complaint has been filed in this regard �ll date.

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JYOTI 2023.08.22 13:08 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-1770-2023

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Thus, the quan�ty allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the pe��oner to sa�sfy the twin condi�ons put in place by the Legislature under Sec�on 37 of the NDPS Act.

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The pe��on states that the accused is en�tled to bail because of the nonexamina�on of independent witnesses. However, this plea would gather force only when the accused establishes a�er cross-examina�on that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not sa�sfy the requirements of sec�on 37 of NDPS Act.

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In State of Punjab v Baldev Singh, (1999) 6 SCC 172, the Cons�tu�onal bench of Hon’ble Supreme Court holds,

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[14]. The provisions of Sec�ons 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effec�ng search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the inves�ga�on including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narco�c drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and con�nue the inves�ga�on as provided thereunder. If the inves�ga�ng officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should therea�er proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case a�er referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and par�cularly those of Sec�ons 100, 102, 103 and 165 per se does not vi�ate the prosecu�on case. If there is such a viola�on, what the courts have to see is whether any prejudice was caused to the accused. While apprecia�ng the evidence and other relevant factors, the courts should bear in mind that there was such a viola�on and evaluate the evidence on record keeping that in view.

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Ld. counsel for the pe��oner submits that the inves�gator conducted search and seizure viola�ng sec�ons 42 and 50 of the NDPS.

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Whether the Inves�gator complied with the mandatory provisions of sec�ons 42 and 50 of the NDPS Act is a ques�on of fact to be adjudicated in the trial. However, before this court treats the compliance as illegal, the prosecu�on needs an opportunity to prove that they had complied with the mandatory provisions per law. Such a stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem . The excep�on to this would be applicable only when the non-compliance of the mandatory provisions of sec�ons 42 and 50 of the JYOTI NDPS Act is apparent on the face of the special report under sec�on 57 of the NDPS Act 2023.08.22 13:08 I attest to the accuracy and integrity of this order/judgment. 2

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CRM-M-1770-2023

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and other documents of search and seizure, and in the opinion of the court, the lapse is non-rec�fiable, a�er recording a finding that it is an incurable defect, the court might consider gran�ng bail on such viola�ons.

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In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, Hon’ble Supreme Court holds,

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[3]. The ques�on is whether the learned Sessions Judge was jus�fied, at the stage of taking cognizance of the offence, in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of Sec�on 50 of the Act had not been complied with. This Court in State of Punjab v. Balbir Singh [(1994)3 SCC 299] : (AIR 1994 SCW 1802) has considered the provisions of the Act. Sec�on 50 has been held to be mandatory. In paragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a Gaze�ed Officer or a Magistrate and search would be conducted in his presence. It was impera�ve on the part of the Officer to inform the person of the above right and if he failed to do the same, it amounted to viola�on of the requirement of Sec�on 50 of the Act. It was held that when the person was searched he must have been aware of his right and that it could be done only if the authorised or empowered Officer informed him of the same. Accordingly, this Court by implica�on read the obliga�on on the part of authorised Officer to inform the person to be searched of his right to informa�on that he could be searched in the presence of the Gaze�ed Officer or the Magistrate. In Saiyad Mohd. Saiyaad Umar Saiyed v. State of Gujarat [1995(3) JT SC 489] a three-Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit ar�cles under the Act, viz., the shi�ing of the onus to the accused and the severe punishment to which he became liable, the Legislature had enacted safeguards contained in Sec�on 50. Compliance of the safeguards in Sec�on 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gaze�ed Officer or a Magistrate. The possession of illicit ar�cle has to be sa�sfactorily established before the Court. The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gaze�ed Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protec�on the law gives him and must find that possession of illicit ar�cles was not established. The presump�on under Ar�cle 114, illustra�on (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply. It is the duty of the Court to carefully scru�nise the evidence and sa�sfy that the accused had been informed by the concerned Officer that he had a right to be searched before a Gaze�ed Officer or a Magistrate and that the person had not chosen to so demand.

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[4]. It is to be seen whether the accused has been afforded such a right and whether the authorised Officer has violated the mandatory requirement, as a ques�on of fact, has to be proved at the trial. In Pooran Mal v. Director of Inspec�on [(1974) 1 SCC 345] : (AIR 1974 SC 348) a Cons�tu�on Bench of this Court had held that power of search

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JYOTI 2023.08.22 13:08 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-1770-2023

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and seizure, is, in any system of jurisprudence, an overriding power of the State for the protec�on of social security and that power is necessarily regulated by law. A search by itself is not a restric�on on the right to hold and enjoy property, though seizure is a temporary restric�on to the right of possession and enjoyment of the property seized. However, the seizure will be only temporary and limited for the purpose of the inves�ga�on. The power of search and seizure is an accepted norm is our criminal law envisaged in Sec�ons 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence. The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of Cons�tu�on to exclude such evidence. The decisions of the American Supreme Court spelling out certain Cons�tu�onal protec�ons in regard to search and seizure are not applicable to exclude the evidence obtained on an illegal search. Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibi�on in the Cons�tu�on or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restric�ons imposed as reasonable measures.

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[7]. It would thus be se�led law that every devia�on from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the ar�cles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be a�ached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.

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The stand that the accused is in custody for sufficient �me is also not legal ground to overcome the rigors of S. 37 of the NDPS Act at this stage.

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The grounds taken in the bail pe��on do not shi� the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The pe��oner has not stated anything to discharge the burden put by the stringent condi�ons placed in the statute by the legislature under sec�on 37 of the NDPS Act. Thus, the pe��oner has failed to make a case for bail at this stage.

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A perusal of the bail pe��on and the documents a�ached, primafacie points towards the pe��oner’s involvement and does not make out a case for bail. Any further discussions are likely to prejudice the pe��oner; this court refrains from doing so.

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JYOTI 2023.08.22 13:08 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-1770-2023

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Any observa�on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.

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The pe��on is dismissed . All pending applica�ons, if any, stand closed. However, considering the pe��oner's right to speedy trial coupled with the pre-trial incarcera�on, this court requests the concerned trial court to make all endeavours to conclude the trial by Dec 31, 2023, of which the prosecu�on evidence be completed by Oct 31, 2023, and latest by Nov 30, 2023, and the remaining �me to provide an opportunity to the accused to lead defence evidence, if so desired, and to conclude its hearing. To meet the deadline, an endeavour be made to speed up the process for service and to pass the necessary direc�ons in this regard. It is clarified that if expedi�ng this trial disturbs the docket of the concerned court, then a balance be struck, and if, on this account, any delay happens, then an extension can be sought by men�oning such reasons. It is clarified that this order speeding up the trial is subject to the condi�on that neither the pe��oner shall seek any adjournment nor try to use any tac�cs to delay the trial. If they do so, this order of expedi�ng the trial shall stand automa�cally recalled by resor�ng to Sec�on 362, read with Sec�on 482 Code of Criminal Procedure, 1973, without any

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further reference to this court. If any of the accused is on bail and fail(s) to a�end the trial without any sufficient cause, then they be dealt with strictly but in accordance with law. It is clarified that if the trial is not concluded by the date men�oned above, and if the delay is not a�ributable to the pe��oner, then the pe��oner may file an applica�on for bail before the trial court, which shall decide it expedi�ously and consider the bail on the grounds of pre-trial custody, and all the previous orders of dismissal passed by the trial court or High Court shall not come in the way.

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(ANOOP CHITKARA) JUDGE 22.08.2023 Jyo�-II Whether speaking/reasoned: Yes Whether reportable: No.

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JYOTI 2023.08.22 13:08 I attest to the accuracy and integrity of this order/judgment.

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Ramesh Kumar v. State of Haryana

Case brief

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Ramesh Kumar v. State of Haryana

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