Source:legaldesire.com<\/p>\n\n\n\n
It\n has to be remarked right at the outset that in a latest, landmark and \nlaudable judgment titled Sanjiv Sharma @ Sanjeev Sharma Vs State of \nHaryana in CRM-M No. 21859 of 2019 delivered by the Punjab and Haryana \nHigh Court on July 3, 2019, it has been held loud and clear that right \nto get anticipatory bail is not any fundamental right. This sharp \nobservation was made by the Punjab and Haryana High Court while \nrejecting an application filed by a man involved in a case registered \nunder the Narcotics Drugs and Psychotropic Substances Act, 1985. Justice\n Rajbir Sehrawat who authored this judgment (oral) held very clearly \nthat the statutory power of granting pre-arrest bail is so extraordinary\n that it is not even available in some parts of the country! Very \nrightly so!<\/p>\n\n\n\n
\n To start with, the ball is set rolling in the first para of this \nnoteworthy judgment wherein it is pointed out that, \u201cThe present \npetition has been filed by the petitioner under Section 438 of Cr.P.C. \nfor grant of anticipatory bail in case FIR No. 0120 dated 08-04-2019 \nregistered under Section 15\/61 Narcotics Drugs & Psychotropic \nSubstances Act, 1985 at Police Station Naraingarh, District Ambala.\u201d<\/p>\n\n\n\n
\n Moving on, it is then elaborated upon in the next para that, \u201cThe FIR \nin the present case came to be registered on the statement of Inspector \nKeval Singh, CIA Staff, Naraingarh in which it was stated that he had \nreceived secret information that one red coloured closed body Canter, \nbearing registration No. HR 68-B-8648 was standing on kacha road leading\n to Kala Amb towards Ruchra factory, whose driver is stopping many truck\n drivers on the way and he is having some kind of secret conversation \nwith them. This led the police officers to have suspicion that the said \ndriver was having some contraband substance in his possession. The \ninformation in this regard was sent to Mr. Amit Kumar, HPS, Deputy \nSuperintendent of Police, Naraingarh for information. On the said secret\n information, the above said inspector along with his companion police \nofficials reached the spot and on reaching there, the police party found\n that red coloured closed body Canter bearing registration number as \nstated above, was parked on the road and a person was found sitting on \nthe driver seat. The driver was asked to come down and he disclosed his \nname as Ravinder Singh alias Jonku. After having been given due notice \nunder Section 50 of the NDPS Act, the search of the vehicle was \nconducted in the presence of Mr. Amit Kumar, Deputy Superintendent of \nPolice, Naraingarh. During the search, apart from some small drums which\n were loaded in the Canter, four plastic bags were found; whose mouth \nhad been sealed. Out of these, two were found to be of white colour and \ntwo were of black colour. On being questioned, the said driver Ravinder \nSingh disclosed that these plastic bags were having poppy husk. \nAccordingly, the bags were taken out from the Canter. On being weighed,\n total quantity of poppy husk found in these bags was 1 quintal and 60 \nkilograms. Samples were drawn out of that. On further questioning, the \nregistration certificate of the Canter was found. Canter was found to be\n owned by one Himanshu Bhalla, resident of Panchkula. He was also joined\n in the investigation, from whom it came out that 200 drums were loaded \nin the Canter from Mumbai and were to be taken to Mukhmajra, Himachal \nPradesh. Accordingly, the FIR was registered.\u201d<\/p>\n\n\n\n
\n Going forward, it is then pointed out in the next para that, \u201cDuring \nthe investigation above said Ravinder Singh disclosed that he had got \nthe above said poppy husk from the present petitioner. Hence, the name \nof the petitioner also came to be involved in this case.\u201d<\/p>\n\n\n\n
\n To put things in perspective, it is then stated in the next para that, \n\u201cWhile arguing the case, the learned counsel for the petitioner has \nsubmitted that, admittedly, the petitioner was not found to be present \non the spot. Nothing has been recovered from him. His name has been \nincluded in the case only on the basis of the disclosure statement of \nthe co-accused, from whom the recovery has been effected. Still further,\n it is submitted that police have tried to change the nature of the \ncase, by substituting the name of the petitioner in place of some other \nperson, who was allegedly named originally by the co-accused as the \nsupplier of the drugs. The counsel for the petitioner has also relied \nupon an judgment passed by a coordinate Bench of this court in Jaz Singh\n versus State of Haryana, 2016 (1) RCR (Criminal) 454, to contend that \nsince the petitioner was not found at the spot, therefore, he is \nentitled to grant of anticipatory bail.\u201d<\/p>\n\n\n\n
\n On the contrary, it is then pointed out in the next para that, \u201cOn the \nother hand, learned counsel for the State on being instructed by SI \nKrishan Lal, CIA Staff, Naraingarh, submits that sufficient material has\n been found against the petitioner to justify his custodial \ninterrogation. It is disputed by counsel for the State that anybody else\n was named by the co-accused. There was no substitution of name of the \npetitioner in place of somebody else. It is further submitted by counsel\n for the State that, in fact, the co-accused has named the supplier as \nBilla referring him as owner of the dhaba. The name Billa is referable \nonly to the present petitioner and nobody else. It is also pointed out \nthat the present petitioner has been pretending to be the owner of the \ndhabha to ensure that his supplies are taken in appropriate manner by \nthe drivers of the trucks, who were having stop-over at this Dhaba. To \njustify the custodial interrogation, learned counsel for the State has \npointed out that during the investigation conducted so far, besides the \ndisclosure statement of the co-accused, the call details taken by the \ninvestigating officer, have also shown a connection of the petitioner \nwith the co-accused arrested for drug trafficking in this case. Learned \nState counsel has pointed out that before the date of occurrence itself,\n the petitioner has been found to have talked with co-accused on mobile \nphone. Therefore, the petitioner cannot claim that he is not involved in\n the case. It is also submitted by learned counsel for the State that \nthe petitioner is having another case of similar nature as well, \nregistered against him at different police station.\u201d<\/p>\n\n\n\n
\n Simply put, the next para then states that, \u201cTo counter the arguments \nof learned State counsel, learned counsel for the petitioner has \nsubmitted that another case was also of the same date, as is of the \npresent case.\u201d<\/p>\n\n\n\n
\n Most importantly, it is then very rightly underscored in the next para \nwhile holding that, \u201cNo doubt, the accused as a citizen has a \nfundamental right to life and liberty. However, that right to life and \nliberty can very well be curtailed in accordance with the procedure \nestablished by law. As per the procedure prescribed for Criminal \nAdministration of Justice, the normal procedure for curtailing the life \nand liberty of the accused, Cr.P.C. prescribes that the Investigating \nOfficer can arrest an accused even without warrant and without \nassistance\/interference of the Court. However, to ensure that a person \nis not unduly harassed, the circumstances are leading, predominantly \ntowards ex facie innocence of the accused, the Courts have been given \nspecial and extraordinary power under Section 438 Cr.P.C. This statutory\n power of granting pre-arrest bail is so extraordinary that it is not \neven available in all parts of the country; and even through-out the \ncountry qua some offences under special statutes. Hence, right to get \nanticipatory bail is not any fundamental right. The provision of Section\n 438 Cr.P.C. provides only a remedy to an accused and leaves the extent \nof right to liberty to be decided by the Court.\u201d <\/p>\n\n\n\n
\n As it turned out, it is then observed in the next para that, \u201cIn the \npresent case this court finds that a person has been arrested with a \nvery heavy quantity of the contraband. He has specifically named the \npetitioner as the person who has supplied this contraband to him. There \nis nothing on record, as of now, to suggest that the petitioner has no \nconnection with the said co-accused, in any manner whatsoever. Rather as\n per the record of the police the petitioner is alleged to have repeated\n contacts with the co-accused from whom the recovery is stated to have \nbeen made. Therefore, this Court does not find any mitigating \ncircumstance, showing ex-facie innocence of the accused, qua the \nallegations levelled against him. Moreover, since the police claims to \nhave collected some material relatable to the petitioner qua the \noffence, therefore, this court finds substance in the argument of the \nlearned counsel for the State that the police deserve to be given an \nopportunity to investigate the case in the manner considered appropriate\n by it. Since the petitioner has been alleged to be in repeated contact \nwith the co-accused, from whom the recovery has been made, this court \nfinds that protecting the petitioner against his arrest at this stage \nwould hamper the free and fair investigation of the case.\u201d<\/p>\n\n\n\n
\n As things stand, it is then held in the \nnext para that, \u201cAlthough, the counsel for the petitioner has relied \nupon the judgment in the case of Jaz Singh (supra), however, this court \nfinds that the facts of the present case are totally distinguishable as \ncompared to the facts of the judgment in aforesaid case. In that case \nthe positive claim of the petitioner was that he had engaged the \nco-accused as a driver on the truck owned by him and that driver had \nmis-conducted himself leading to the offence. He further argued that he \nwas not even present at the spot when the recovery was made by the \npolice. Beyond the fact that the person was owner of the vehicle in that\n case, there was nothing on record to suggest that he was involved in \nthe offence. However, in the present case the police file contains \ndefinite incriminating material which can lead to a positive connection \nof the petitioner with the consignment allegedly recovered from the \nco-accused.\u201d<\/p>\n\n\n\n
\n In conclusion, it is then finally held in the last para that, \n\u201cIn view of the above, but without commenting any further on merits of \nthe case, this court does not find any ground to grant anticipatory bail\n to the petitioner. Therefore, the present petition for anticipatory \nbail is dismissed.\u201d<\/p>\n\n\n\n
\n All said and done, this latest, landmark and extremely commendable \njudgment by the Punjab and Haryana High Court seeks to make it \nabsolutely clear that right to get anticipatory bail is not any \nfundamental right. At the risk of repetition, it must be again pointed \nout that it is emphatically asserted in this noteworthy judgment that \nthe statutory power of granting pre-arrest bail is so extraordinary that\n it is not even available in some parts of the country. It is also very \nrightly held that it is the court which has to take the final call and \ndecide finally on whether to grant or not to grant an anticipatory bail \nto the accused! There can be no denying it! <\/p>\n