Pappi vs State of Haryana

Sat Pal, J.

This petition has been filed by the petitioner under section 439 of the Code of Criminal Procedure seeking bail pending trial in the case FIR No. 44, dated 13th March, 1995, registered at Police Station Baragudha District Sirsa, under Sections 15/16 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act).

Briefly stated, the facts of the case are that information was received by the patrolling party headed by SHO Police Station Baragudha that one person namely, Jarnail Singh caste Jat was living with his cousin brother Munna alias Joginder Singh and doing the business of Chura Post (Poppy husk) in the field of his brother. Accordingly, the said SHO along with the Police party reached the fields of Munna and found that 31/2 bags of Poppy husk were lying near a person who stated his name as Pappi son of Jarnail Singh. It is further alleged in the FIR that the said Pappi was asked as to whether he would like to be searched before a Gazetted Officer or a Magistrate or by the said SHO, and Pappi stated that he wanted to be searched before a gazetted officer. Thereafter, a message was sent to DSP Ram Nath, and the said DSP came at the spot and gave the orders of the search and as a result thereof, 31/2 bags of poppy husk were recovered and after drawing 100 grams from each bag as sample, the remaining poppy husk was weighed and found 39.00 Kgs. in each bag and after preparing one Pulanda of sample, and the remaining Poppy Husk was sealed through stamp ''RR'' and Pappi was taken into custody.

Notice of this petition was issued to A.G. Haryana on 2nd May, 1995.

During the pendency of the petition, an application bearing No. Cr. Misc. No. 10524 of 1995 was filed on behalf of the petitioner, wherein it was prayed that the petitioner be permitted to raise fresh grounds for bail under Section 167(2) of the Code of Criminal Procedure, and the petitioner be also allowed to file copy of an additional application regarding illegal arrest of the petitioner on 13th March, 1995. Notice of this application was issued to A.G. Haryana on 16th June, 1995 and on direction of the Court, the learned AAG Haryana accepted the notice of the application on the same day, and it was directed that this application would be heard along with the main case on the next date of hearing. Reply to this application was filed on 4th July, 1995, and the case was adjourned to 11th July, 1995. On 11th July, the case was adjourned to 14th July, 1995.

Arguments on the main petition as well as on the application have been heard.

In view of the facts stated in the application, Cr. Misc. No. 10524 of 1995 is allowed and the affidavit of Joginder Singh and photostat copy of the application dated 13th March, 1995 filed before the Judicial Magistrate, Sirsa, are permitted to be brought on record. As already stated, reply to this application as well as to the main petition has already been filed on behalf of the State.

Mr. Thind, learned counsel for the petitioner submitted that as per the FIR, the time of the occurrence is 6.15 p.m. on 13th March, 1995, whereas the petitioner had already moved an application on the morning of 13th March, 1995, stating therein that the petitioner had been lifted by the Police of Baragudha Police Station in the morning itself and a photo copy of the said application which is on record, clearly shows that the Judicial Magistrate concerned had passed an order at 10.15 a.m. on the same day calling for comments of the SHO Baragudha, and there is an endorsement on the back of the said application by the said SHO that no such person had been arrested by the Police of Baragudha Police Station on that day. He further submitted that though the FIR indicates that the petitioner was apprehended by the Police Party headed by the SHO PS Baragudha but in the reply filed by the DSP (H) Sirsa on behalf of the State of Haryana, it has been stated that the accused were arrested by CIA Staff at 7.15 p.m. on 13th March, 1995. He, therefore, contended that a false case had been registered against the petitioner.

Learned counsel further drew my attention to the additional ground taken in Cr. Misc. No. 10524 of 1995, wherein it has been stated that the petitioner was arrested on 13th March, 1995 and he was produced before the Ilaqa Magistrate on 14th March, 1995 but the challan has not been filed within 90 days and as such there is a violation of section 167(2) of the Code of Criminal Procedure. In support of his contention, he placed reliance on a recent judgment of the Supreme Court in the case Union of India v. Thamisharasi and others, 1995(2) RCR 531 .

In the reply filed by SHO PS Baragudha on behalf of the State of Haryana, it has been admitted that the challan could not be filed within 90 days as required under Section 167(2) of the Code. It has, however, been stated that the delay in submitting the challan was due to the report of F.S.L.

Mr. Dewan, learned AAG Haryana, submitted that the petitioner was not entitled to bail for alleged violation of Section 167(2) of the Code as the provisions of Section 167 of the Code are not applicable to the present case in view of section 37 of the NDPS Act. In support of this contention, learned AAG placed reliance on a judgment of this Court in Mahal Singh v. State of Punjab, 1995(1) Recent CR 667 .

I have given my thoughful consideration to the submissions made by the learned counsel for the parties and have perused the record. In the present case, the challan has not been filed within 90 days from the date the initial remand was granted by the Ilaqa Magistrate. In view of the judgment of the Supreme Court in Thamisharasi''s case (supra) and the submissions made by the learned counsel for the petitioner, I am of the opinion that it is a fit case for grant of bail. Accordingly, I direct that the petitioner shall be admitted to bail on furnishing bail bond in the sum of Rs. 50,000/ with two sureties of the like amount to the satisfaction of C.J.M. Sirsa. The decision in the case of Mehal Singh (supra) has no force in view of the judgment of the Supreme Court in the case of Thamisharasi (supra). The observations made hereinabove, shall not have bearing on the merits of the case.