Parveen vs State of Haryana

Arvind Singh Sangwan, J.

This petition has been filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner in case FIR No. 309 dated

14.08.2018, registered under Sections 20 and 27-A of the NDPS Act at Police Station Badhra, District Charkhi Dadri.

Learned counsel for the petitioner submits that petitioner is in judicial custody since 16.08.2018 and one of the co-accused, namely Rinku, has already

been granted concession of regular bail, vide order dated 22.10.2018 passed in CRM-M-43125-2018.

Learned counsel for the petitioner further submits that another co-accused, namely Manjeet @ Bachhiya, has also been been granted concession of

regular bail, vide order dated 21.11.2018 passed in CRM-M-50050-2018. The operative part of the order reads as under:

“Learned counsel for the petitioner submits that as per the allegations in the FIR, on receiving a secret information that three persons, namely

Satish, Sandeep @ Nippo and Manjeet @ Bachhiya, are coming on a motorcycle carrying contraband, the police party laid a Nakabandi and stopped

the motorcycle on which the accused persons were coming.

It is further submitted that the secret information was never recorded in writing for registration of the FIR in this regard. Learned counsel for the

petitioner further submits that in the FIR, it is further stated that after all the three persons were apprehended by the police and their names were

disclosed, the Inspector/Investigating Officer obtained their joint consent and thereafter, he called the DSP at the spot.

Learned counsel for the petitioner relies upon the judgment rendered in “State of Rajasthan vs Parmanand and anotherâ€, 2014(2) RCR (Criminal)

40, wherein, it has been held by the Hon'ble Supreme Court that considering the stringent provisions under the NDPS Act, the right available to an

accused person under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate, will be frustrated in case clear,

unambiguous and individual offer is not given to the accused person. It is further held that joint communication of a right may not be clear or

unequivocal as it may create confusion and may result in diluting the right.

Learned counsel for the petitioner further submits that in the FIR, it has come that after the recovery was effected from co-accused Sandeep @

Nippo, a parcel was prepared and sealed by putting five seals namely 'TS' and after using the seal, the same was destroyed and was not kept in safe

custody, hence, again the proper procedure has not been followed.

Learned counsel for the petitioner further submits that petitioner is not involved in any other case under the NDPS Act.

Learned State counsel, on instructions from ASI Harinder Singh, submits that though the petitioner is not involved in any other case under the NDPS

Act, however, he is involved in three other FIRs in other offences in which he is on bail. It is further submitted that investigation is complete and

challan stands presented and eleven prosecution witnesses are yet to be examined.â€​

Learned counsel for the petitioner further submits that petitioner was not arrested at the spot and he is not involved in any other case.

Learned State counsel, on the basis of the custody certificate filed in Court today and on instructions from HC Sandeep Kumar, has not disputed the

factual position. As per custody certificate, petitioner is not involved in any other case.

I have heard learned counsel for the parties.

Without commenting upon the merits of the case, considering the aforesaid submissions of learned counsel for the petitioner; the instant petition is

allowed. The petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court/Duty Magistrate

concerned.