Mubarik vs State of Haryana

M.L. Singhal, J.

Mubarik appellant was convicted by the Addl. Sessions Judge, Faridabad and sentenced to undergo Rigorous Imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine to further undergo rigorous imprisonment for 3 years vide order dated 19/20.4.1995 under section 20(b) of the Narotic Drugs and Psychotropic Substances Act, 1985.

Not satisfied with the order of conviction and sentence passed against him by the Addl. Sessions Judge, Faridabad, Mubarik came up in appeal to this Court. Appeal was admitted vide order dated 17.11.1995 passed by Sat Pal, J.

This is an application by Mubarik moved under Section 389 of the Code of Criminal Procedure for the grant of bail and the suspension of sentence pending this appeal.

I have heard Mr. C.P. Sapra, learned counsel for the appellantapplicant and Mr. S.S. Khetarpal, learned Advocate for the State of Haryana and have gone through the record.

It has been submitted by the learned counsel for the appellant/applicant that ASI Mahavir Parshad had received secret information against Mubarik that he was present near Canara Bank Neelam Bata Road, Faridabad on 5.3.1994. On receiving that secret information, he laid naka. He ought to have joined some independent, reliable and trustworthy witnesses. He ought not to have joined merely Prem Singh who had been on visiting terms with ASI Mahavir Parshad since before the recovery. It has been submitted that when Mubarik was allegedly nabbed, people were passing by that road whom ASI Mahavir Parshad did not join.

It has been next submitted that ASI Mahavir Parshad is not a man of credibility as he has been dismissed from service as a result of some writ petition.

It has been next submitted that the provisions of Section 50 of the said Act have not been complied with inasmuch as no option was given to Mubarik that if he wanted, he could be taken to a Gazetted Officer or Magistrate for search. It has been submitted that if option had been given to Mubarik, he would have definitely stated that he should be taken to a Gazetted Officer or Magistrate for search of the bag he was carrying.

It has been next submitted that there is noncompliance with the provisions of Section 42 of the Act inasmuch as ASI Mahavir Parshad did not reduce that information in writing and send it to his immediate official superior. noncompliance of the provisions of Section 42 of Act is, according to him, fatal to the prosecution.

Lastly, it has been submitted that Mubarik has been in jail since 5.3.1994. Hearing of appeal is not possible in the near future. Division Bench of this Court consisting of H.S. Bedi and S.C. Malte, JJ has ruled that there is no bar in the Norcotic Drugs and Psychotropic Substances Act, 1985 barring the release on bail of convicts of offences falling within the ambit of this Act.

Keeping in view that Mubarik has been in detention/jail since 5.3.1994 and the hearing of the appeal is not possible in the near future and further the appeal is fairly arguable, bail is allowed to the applicantMubarik subject to the satisfaction of the Chief Judicial Magistrate, Faridabad. Sentence of imprisonment and that of fine up to Rs. 80,000/ is suspended.