Uday Alias Nanha v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH 231(2) Date of Decision: 17.01.2023 Uday @ Nanha

...Petitioner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. R.S. Mamli, Advocate, for the petitioner.

Mr. Rajat Gautam, D.A.G., Haryana.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 02.03.2022 Rohtak City, District Rohtak 20 (b) (ii) C of NDPS Act 1.

The petitioner, apprehending arrest for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR captioned above, on the allegations of transporting 32 kgs of ganja in connivance with co-accused, by piloting in his car the vehicle carrying ganja from which the police had seized the same, has come up before this Court under Section 438 CrPC seeking anticipatory bail.

2.

In paragraph 15 of the bail petition, the accused declares that he has no criminal antecedents.

3.

The petitioner's counsel contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 4.

The State's counsel opposes the bail.

REASONING:

5.

The quantity allegedly involved in this case is commercial and the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. 6.

The police have collected the evidence that the trunk in which contraband was transported was being used by petitioner. The Investigator recorded the statement of

brother of the petitioner and a perusal of the bail order of Trial court reveals about the same. Petitioner did not offer any explanation that why his vehicle was used for transporting contraband.

7.

The petition states that the accused is entitled to bail because of the nonexamination of independent witnesses. However, this plea would gather force only when the accused establishes after cross-examination that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not satisfy the requirements of section 37 of NDPS Act. 8.

In State of Punjab v Baldev Singh, (1999) 6 SCC 172, the Constitutional bench of Hon'ble Supreme Court holds, [14]. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder.

If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.

9.

The grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. Thus, the petitioner has failed to make a case for bail at this stage.

10.

In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, Hon'ble Supreme Court holds, [19]. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse

his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305]. 11.

In the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner fails to make a case for anticipatory bail under section 438 CrPC.

12.

Any observation made hereinabove is neither an expression of opinion on the case's merits, neither the court taking up regular bail nor the trial Court shall advert to these comments.

Petition dismissed in aforesaid terms. All pending applications, if any, stand disposed. (ANOOP CHITKARA) JUDGE 17.01.2023 Jyoti-II Whether speaking/reasoned:

Yes Whether reportable:

No.