Devinder Singh alias Binder vs State of Punjab

K.S. Kumaran, J.

PetitionerDevinder Singh alias Binder has approached this Court under Section 439 of the Code of Criminal Procedure for being released on bail in F.I.R. No. 40 dated 1.4.1998 registered at Police Station Mahilpur District Hoshiarpur, under Sections 15/61/85 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the N.D.P.S. Act).

The allegation in the F.I.R. are as follows :

When the police party along with the Sub Inspector was present near Amrit Petrol Pump, Saila Khurd, a secret informer informed that Harjinder Singh and his brother (Devinder Singhpetitioner herein) resident of village Pansra are engaged in the sale of poppy husk from their cattle shed. On this information the policy party reached the village Pansra. SarpanchBaldev Singh and Shauka Singh former Sarpanch met them and they were associated. The cattle shed of Harjinder Singh was raided, from where two persons ran away on seeing the police party, leaving behind the scale and weight. They were apprehended, and one of whom is the petitionerherein and the second in his brother Harjinder Singh. Harjinder Singh made a disclosure statement that he had kept concealed three bags of poppy husk in his cattle shed beneath the fodder, and in pursuance of the said disclosure statement which was recorded, petitioner Devinder Singh was given the offer as to whether the search could be conducted in the presence of a Gazetted Officer or a Magistrate. Devinder Singh expressed confidence in the Sub Inspector and took out three bags of poppy husk from beneath the fodder lying in the cattle shed. Samples were taken and the total poppy husk weighed 120.75 kgs. On this basis, F.I.R. came to be registered.

The petitioner had moved an application under Section 439 of the Code of Criminal Procedure for being released on bail before the Sessions Court, Hoshiarpur, and the said application was dismissed by the learned Additional Sessions Judge, Hoshiarpur. That is why the petitioner has approached this Court with this petition.

I have heard the counsel for both the sides.

Learned counsel for the petitioner contends though the F.I.R. specifically mentions that a secret informer came and giving information about the petitioner and the other selling poppy husk the same was not recorded and forwarded to the superior officer and therefore, there is violation of the provisions of Section 42 of the N.D.P.S. Act and on this ground alone, the petitioner is entitled to bail. Learned counsel for the petitioner also contends that the very same police officer acted as the Investigating Officer and that again will affect the case of the prosecution. Petitioner also contends that the case of the prosecution is also totally untrue and unbelievable since the recovery is alleged to have been made from the cattle shed of the brother of the petitioner, on the disclosure statement made by the petitioner. But taking into consideration the fact that the alleged secret information had not been recorded and forwarded to the superior, as contemplated under Section 42 of the Act, I am of the opinion that the petitioner is entitled to the relief of bail.

Therefore, without meaning to express any opinion on the merits of the main case, I am of the opinion that the petitioner is entitled to be released on bail.

Resultantly, the petition is allowed and the petitioner is ordered to the released on bail on his furnishing sufficient surety to the satisfaction of Chief Judicial Magistrate, Hoshiarpur.