Punjab and Haryana High Court: Manoj Bajaj, J., directed for disciplinary action against the Presiding Officer of the Trial Court who had granted bail to one accused in an NDPS case by neglecting the materials on record.
The case against the petitioner was that when he was signalled to stop by the Police for search of contraband, he had suddenly run his vehicle over police party with intention to kill and the person sitting behind driver seat fired firearm shot at police party. Also, during search of the vehicle about 320 kgs. 150 grams Ganja was recovered from it. Consequently, a case was registered against the petitioner under Sections 20, 25, 27, 61 NDPS Act, 1985, Section 25 Arms Act, 1959, Sections 307 and 420 of Penal Code, 1860.
The petitioner had sought for concession bail on parity as, by an 01-11-2021, the Additional Sessions Judge had granted bail to the co-accused, namely, Pardeep. The petitioner contended that the prosecution had set up a common case against both the accused persons. The petitioner also contended that the contraband recovered would not fall within the definition of Ganja.
Findings of the Court
Finding the argument that the recovered contraband would not fall within the ambit of NDPS Act,1985 as misplaced, the Bench observed that as per FSL report, the sample tested was identified as `Ganja’.
The Bench opined that as per the definition under S. 2(iii)(b) of NDPS Act, though seeds and leaves in the absence of fruiting tops may not fall within the definition of Ganja, but where the seeds or leaves are accompanied by tops, the said material would not be excluded from the definition of Ganja. The physical appearance of the material as contained in the FSL report; i.e. recovered from accused described it as “greenish brown vegetative material having flowering/fruiting tops and seeds etc.”
Therefore, the order relied by the petitioner revealed that the Trial Court proceeded to grant regular bail to co-accused Pardeep on the ground that neither the applicant was arrested from the Tempo Traveller, nor the FSL report relating to alleged contraband had been received. Further, the Trial Court had also noted the clean antecedents of the co-accused and the fact that the alleged supplier did not name the said co-accused as a reason to extend concession bail to the co-accused.
Noticeably, the observation that the co-ccused, Pardeep was not arrested from the Tempo Traveller gives an impression that he was not present at the spot, whereas as per prosecution, the driver had tried to escape in a violent manner in order to avoid arrest and seizure of contraband. Strangely, the FSL report was filed on 03-06-2021 before the Trial Court, but it was not referred to at all by the Presiding Officer, who extended the bail with the observation that the report was yet to be filed. As a result, the Bench opined that the order dated 01-11-2021 had been passed by the Additional Sessions Judge in an arbitrary manner by twisting the facts in order to extend the benefit of regular bail to the co-accused.
Holding that the Presiding Officer had extended the concession of regular bail to the co-ccused, Pardeep by deliberately ignoring the material on record, and exercised the discretion in favour of accused by violating the sound judicial principles and that amounts to grave misconduct on his part, the Bench directed for a disciplinary action against the Presiding Officer. The regular bail granted to the co-accused, Pardeep by the Trial Court was cancelled and he was directed to surrender before the Trial Court. The bail application of the petitioner was withdrawn. [Ajay Kumar v. State of Haryana, Criminal Misc. No.31752 of 2021, decided on 01-12-2021]
Kamini Sharma, Editorial Assistant ahs reported this brief.
For the Petitioner: Dushyant Saharan, Advocate
For the State: Bhupender Singh, DAG, Haryana
For the Co-accused: R.A.Sheoran, Advocate