BARAM KHAN @ CHOTTU KHAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) IN this petition under Section 439 of the Criminal Procedure Code, the petitioner has sought his release on bail during the pendency of trial in a case with the allegations against him that on January 4, 1992, he was found in possession of two qtls. 70 kgms.of "Chura Post" when his house was raided by Sub Inspector/Station House Officer of Police Station, Bhatiu Kalan, alongwith other Police Officials. The raid was conducted on the premises of the petitioner on the receipt of some secret information and before reaching at the raided place, Deputy Superintendent of Police of Sub Division Fatehbad was also sounded, who also came present at the spot later on. It is further alleged that the First Information Report and recovery of the aforesaid contraband was got effected in the presence of said Deputy Superintendent of Police and one independent witness Surja Ram.

(2.) THE petitioner has emphatically denied the allegations of the prosecution. In addition, it is contended that there is no mention in the FIR that on receipt of the secret information any Ruqqa was sent to the Police Station of the substance of information received. Even no such Ruqqa is alleged to have been sent after the alleged recovery in the presence of the Deputy Superintendent of Police. Moreover, two witnesses of the locality were required to be joined, but not joined before conducting raid on the premises of the petitioner in terms of Section 100(4) of the Criminal Procedure Code, 1973(hereinafter referred to as the 'Code'). Further it does not find mention in the FIR that any reasons were recorded and served on the petitioner.In terms it was held that in view of Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, the High Court has no jurisdiction to entertain an application for bail under Section 439 Cr.P.C. read with section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1985(hereinafter referred to as the 'TADA'). Section 20(8) of the TADA and section 37 of the NDPS Act are identical in nature. However, while interpreting the scope of section 439 Cr.P.C. as limited by Section 20(8)of the TADA, the Hon'ble Supreme Court observed as under in Usmanbhai's case(supra) : - "23 That takes us to the approach which a designated Court has to adopt while granting bail in view of the limitations placed on such power under Section 20(8). The sub section in terms placed fetters on the power of a Designated Court on granting of bail and the limitations specified therein are in addition to the limitations under the Code. Under section 20(8) no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody be released on bail or on his own bond unless the two conditions specified in Clause(a) and (b) are satisfied. In view of these more stringent conditions a Designated court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. Since before granting bail the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail the allegations of fact the police report alongwith the statements in the case diary and other available materials should be closely examined. A prayer for bail ought not to be rejected in a mechanical manner".

(3.) THE above observations of the Supreme Court make it clear that a Court should examine every case coming before it for finding out whether the provisions of the act apply to the facts of the case or not. Pertinent observations were also made that before granting bail, the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of fact, the police report alongwith the statements in the case diary and other materials have to be closely examined before recording a finding as to whether the aforesaid two conditions are fulfilled or not.