Pankaj Kumar v. State Of Haryana
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4 6To Mr. SHO Sahib, Police Station Sector 53, District Gurugram, Jai Hind Mr., today on 07"11"2023, I am present in the area of Police Station Saraswati Kunj Sector 53, Gurugram Crime Investigation after receiving information from the informant of ASI Jitendra 832/GGM, Constable Gautam 4308/GGM that the informant informed that a person named Ramakant son of Jamun Thakur, resident of village Fatehabad, Police Station Paru, District
Muzaffarpur, Bihar, who sells narcotics in Saraswati Kunj Sector 53, and today he is in a vehicle number BR06BR3940, white in color, and is trying to sell the narcotic substance hashish. If a raid is conducted immediately, the drug can be caught along with the person and as the information was credible, I prepared a report under Section 42 NDPS and sent constable Gautam 4308/GGM to the police station to inform the higher authorities. I also informed gazetted officer Shri Dinesh Sharma, ETO and manager, police station Sector 53 over the phone. I also informed a fellow employee about the information and prepared a raiding party and I stopped the passersbys and requested them to join the raid but everyone expressed their helplessness and went to their destination and due to lack of time, no notice could be given to anyone.
I, along with S.S. Sub"Inspector, fellow employee and confidential informant, reached Saraswati Kunj Sector 53 where the informant pointed towards the car number BR06BR3940 parked there from about 30/40 steps ahead and told that a person named Ramakant is sitting in this car. He has the narcotic substance hashish. On which I dismissed the informant by giving properInstructions. And I, along with my companion, reached the said parked vehicle and checked it. There was a person sitting on the back seat of the vehicle. When 1 overpowered him and asked his name and address, he told me his name as Ramakant son Jamun Thakur, resident of village Fatehabad, Thana Paru, District Muzaffarpur, Bihar, aged 45 years.
I gave him a notice under 50 NDPS Act that Ramakant, the above mentioned, is informed through this notice that there is a suspicion of the presence of narcotic substances in your vehicle. It is necessary to search you. You want your search to be done by a gazetted officer or magistrate or by me. It is your legal right. As per your wish, a gazetted officer/magistrate can be called on the spot. Ramakant, after understanding the above mentioned notice in his language, in his reply notice agreed to call a gazetted officer on the spot to get his or his vehicle searched by a gazetted officer. Ramakant and the witness signed the reply notice.
inform the concerned gazetted officer about reaching the spot. After some time, Mr. Dinesh Sharma of ETO, Gurugram arrived at the spot. I informed ETO sir about the entire situation and gave him notice under section 42 of the NDPS Act. ETO sir read the notice and introduced himself to the above arrested person. Ramakant understood the notice in his own language and gave his consent to the search of himself and his vehicle by ETO sir. After that, ETO sir Mr. Dinesh Sharma searched the above arrested Ramakant. No items were recovered from his body. When the white plastic sheet kept under the seat behind the driver's seat was taken out and checked, we found a narcotic substance called hashish inside it.
ETO sir and I smelled and checked it with our own experience, and the substance appeared to be Charas, and electronic scale was arranged and the drug Charas was weighed along with the polythene, and the total weight including the polythene came out to be 193 grams, about which Ramakant was asked for a license or permit for keeping the above mentioned narcotic substance, but Ramakant was unable to present license or permit for the same. The recovered narcotics substance Charas was wrapped along the polythene in a cloth, after that I, Sub"Inspector Jitender put a stamp of JK and ETO Sir put a stamp of MK. ETO sir took the stamp in his own authority after use and I handed over my stamp to Ct. Gautam no. 4308/GGM. After this ETO sir verified the parcel.
Narcotic substance Charas was taken into police custody through list of receipt of parcel. Constable Gautam no. 4308/GGM has signed the list of receipt, which was verified by ETO sir. The above mentioned Ramakant has committed the crime of 20 (b) (ii) (B) NDPS Act by keeping 193 grams of hashish in his possession, on which constable Gautam ►No. 4308/GGM is being sent to the police station to prepare the article and to get the FIR registered. After registering the FIR, inform at the spot with FIR number form and I ASI, am the complainant in the present case, hence another investigation officer should be sent for further investigation in the case. I ASI, am busy in investigation at the spot Place" Saraswati Kunj Sec 53 GGM SD/" Jitendra S.O.P.N. Police Station Sector 53 District Gurugram Date 07"11" 2023 Time 7.50 PM.'
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4 "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of
decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer.
Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first"time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re"Inhuman Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658
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6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King"Emperor, AIR 1924 Calcutta 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age"old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory." : 5
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Poonam Negi/Meenu Whether speaking/reasoned Yes/No Whether reportable Yes/No