Punjab-Haryana High Court
Sudesh Alias Baba vs State Of Haryana on 21 October, 2016
Author: A.B.Chaudhari
Bench: A.B.Chaudhari
CRM-M-21895-2016 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-21895-2016
Decided on: 21.10.2016
Sudesh alias Baba .... Petitioner
Versus
State of Haryana ..... Respondent
CORAM: HON'BLE MR.JUSTICE A.B.CHAUDHARI
Present: Mr. R.P. Dhir, Advocate,
for the petitioner.
Ms. Tanushree Gupta, DAG Haryana.
***
A.B. Chaudhari, J (Oral)
Heard learned counsel for the rival parties.
The prosecution has filed additional reply in the present case.
I quote, paragraph 3 and 4 therefrom which reads thus:-
"3. That on 25.1.2016 Gurdeep Ex-Sarpacnh son of Santa
Singh R/o Village Basera P.S. Samalkha Distt. Panipat was
joined in the investigation who had got recorded in the
statement that on 22/23.1.2015 night he had heard that poppy
husk and opium has been recovered from the house of the
petitioner. Thereafter, Uncle of Jonus Masih alias Tinnu
namely Nehat Masih had can at his house and had stated that
his Nephew driver has been apprehended by the police, hence
on his request I along with Nehat Masih reached at the gate of
CIA to Panipat where Kulvinder Kaur mother of the petitioner
met him and she had told that you may go your house all had
been settled, Rs.30 lacs has been given and remaining Rs.10
lacs will be given later on. Thereafter, we all went to our house.
After two days Kulvinder Kaur had taken me to CIA Staff
Panipat to fetch the articles of his son/petitioner such as watch,
chain and purse etc. The police officials had offered tea to her,
on which she had refused to take tea and had stated that the
police officials namely Devender, Krishan, Naresh and Jaiveer
accused had taken an amount of Rs.30 lacs from her and they
had also challaned her children/issues. It is also pertinent to
mention here that on 13.2.2016 Dalbir Singh Ex. Sarpanch of
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CRM-M-21895-2016 2
village Bilaspur was also joined in the investigation and he got
recorded his statement in which he had stated that on
23.12.2015 night, Gorkahpal DSP Samalkha was present in
village and one Truck was also parked there. DSP Samalkha
was enquiring the matter. On 15.2.2016, EASI Rajinder Kumar
Driver of PCR No.15 was also joined in the investigation and
he had got recorded his statement that on 22.12.2015 night,
EASI Jai Bhagwan and he himself were present in village
Hathwala in the mean time they received a V.T. message that
they may talk to telephone no. 7056000112. The Incharge of
PCR EASI jai Bhagwan had talked on the above said number
and had disclosed that SI Jaiveer CIA 2nd Panipat had
summoned/called them in village Basera, on which they
reached at the Phirni/Outer boundary of village Basera, where
SI Jaiveer, ASI Krishan, ASI Naresh/accused, Driver EHC
Mahipal and two constables were found present. Jonus alias
Tinnu co accused of the petitioner was also with them they had
got opened the house of the petitioner, where he was found
present and 54 bags of poppy husk and one Jaw containing
opium was recovered. The above said contravened was loaded
in a Canter and the above police officials/accused had taken
them (Jonus Masih alias Tinnu and the petitioner) to CIA
Panipat. On the very same day and time EASI jai Bhagwan had
also got recorded his statement U/S 161 of Cr.P.C. of the same
footing of ASI Rajinder Kumar as stated above.
4. That on 27.2.2016, Kamaljeet Kaur wife of the petitioner
was joined the investigation of the present case and she had got
recorded her statement U/S 161 of Cr.P.C. that on 22.12.2015
night, the police had brought Jonus Masih alias Tinnu and Sonu
son-in-law of the petitioner and the police officials had taken
54 bags of poppy husk and 3 Kg. opium in a jar and the police
officials had also apprehended her husband petitioner in a
Canter. On 23.12.2015, she herself and her mother-in-law
Kulvinder Kaur had gone to CIA 2nd Panipat to see the
petitioner where, the above said four police officials/accused
had got met her husband and the police officials/accused had
also asked to arrange an amount of Rs.40 lacs and they will not
involve her husband/petitioner Sudesh alias Baba and they will
not show the recovery from their house they will also spare
their son in law Sonu and their Innova Car. On it they agree
with this offer. Thereafter, on 23.12.15, they had arranged Rs.5
lacs from Sanjeev son of Shri Prem Chand R/o Gannaur, Rs.10
lacs from Joginder son of Shri Surat Singh R/o Transport Truck
Union, Rs.10 lacs from one Foji of village Mahawati and they
had arrange of Rs. 5 lacs from her house. On the same day at
about 5/6 P.M. they had handed over the above said amount i.e.
Rs. 30 lacs to accused Jaiveer, Devender, Naresh Kumar and
Krishan Kumar police officials in a room and they had also
stated that you may not disclose this fact to any one and also to
arrange the remaining amount of Rs.10 lacs without any delay.
On the next day, she and her mother-in-law Kulvinder Kaur
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came to know that the present case has come into the notice of
Higher Authorities, on it I and my mother in law had left our
house after locking the same. After some time, we met my
husband Suedesh alias Baba petitioner and he had stated that
they had given an amount of Rs.30 lacs. Thereafter the police
officials had also challaned them so you may disclosed the true
facts to the police. Thereafter, on 14.3.2016 Kulvinder Kaur
wife of Jagat Ram mother of the petitioner had also met the 1.0,
of the present case, deponent the then DSP City Panipat and
she had also got recorded her statement on the same footing of
Kamaljeet Kaur wife of the petitioner".
Learned counsel for the State vehemently opposed the
application for grant of regular bail but fairly states that there is no other
criminal offence or FIR against the petitioner.
However, she contended that the petitioner is in the business of
the smuggling of contraband and according to her as a matter of fact as
stated in the aforesaid paragraph of the additional reply, huge quantity of
contraband was recovered from the residence of the petitioner.
The counsel for the State however submits that the police
officials, who had seized the contraband from the residence of the
petitioner, ultimately, joined hands with the petitioner upon accepting huge
bribes and did not make any contemporaneous record of recovery as
required by law.
That is why according to her, the police officials are being
prosecuted independently by the department.
The counsel for the State, however, submits that the petitioner
is a main person, who has been dealing in contraband. She prayed for
dismissal of petition.
The petitioner was arrested on 13.01.2016 in FIR No. 766
dated 24.12.2015 registered under Sections 201, 203, 212, 213, 214, 217,
218, 342, 385-IPC and 15, 17, 18, 27-A, 29 of NDPS Act, at police station
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Samalkha and is in jail since then. Admittedly, challan has been filed.
Even if the contention raised by learned counsel for the State
about the entire saga regarding police officials joining hands with the
petitioner by taking bribe and looking to the proportion in which the
contraband was allegedly stored, this Court is under a duty to find out if
there is legal evidence against the petitioner for ordering or continuing his
further detention pending trial. In the absence of legal evidence against the
petitioner, there would be no justification in detaining a person in jail till
the trial is completed. It is the case of the prosecution itself that there was a
huge seizure of contraband from the house of the petitioner made by the
police. But then the police did not show any recovery in accordance with
law by making seizure memo for prosecuting the petitioner, nor there is any
other evidence at all to that effect.
The contention raised by counsel for the State that police
officials are being prosecuted for the acts of bribery and hence petitioner's
plea for bail should be turned down is misconceived as this Court finds no
legal evidence against the petitioner to deny the regular bail.
In my view, the only evidence alleged by the prosecution is
about the recovery of contraband from his house in huge quantity. But then
there is absolutely no material at all on record in the form of seizure
documents, panchnama or as the case may be.
The same are also not likely to be available because of the
police party joining hands with the petitioner as alleged by the prosecution.
To sum up, the petitioner will have to be granted the relief of
bail, particularly, when there is no other similar offence alleged against him.
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CRM-M-21895-2016 5
In that view of the matter, I make the following order:-
ORDER
1. CRM No.21895 of 2016 for bail of the petitioner is allowed.
2. Petitioner be released on bail subject to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate concerned on such terms and conditions as would be deemed fit and proper by the Chief Judicial Magistrate/Duty Magistrate.
( A.B. CHAUDHARI ) 21.10.2016 JUDGE Dinesh Whether speaking/reasoned : Yes/No Whether Reportable : Yes/No 5 of 5 ::: Downloaded on - 30-10-2016 13:50:29 :::