Hans Raj vs State of Punjab

M.L. Koul, J.

Issue notice to A.G. Punjab.

Mr. P.S. Sullar, AAG, Punjab, accepts notice.

The petitioner Hans Raj is seeking the redressal of horrible grief caused to him by SI Bahadur Singh of Police Station Payal, district Ludhiana, who during the investigation of case F.I.R. No. 139 dated 3.9.1997 under Sections 18/61/85 of the NDPS Act in the company of Swaran Singh and other police officials went to the house of the petitioner who on interrogation told the said SI that he had kept Kali Khas Khas in a polythene bag dumped in the land near the tree of a Bohar on the road going from Payal to DaooMajra near Electric Grid. He managed to recover this Khas Khas which was found to be 1 Kg. in weight and the petitioner was arrested on the spot and is in jail for the last one month and ten days.

No reply was required to be filed by the respondentState for the whole proceedings appear to be farce and factitious and it seems that it is a police managed drama and a citizen is languished in jail for holding 1 Kg. of Kali Khas Khas in his possession which possibly on the coercion of the police he admitted to have kept away from his house near a Bohar tree. I am not sitting over the matter on merits but all the more it is the duty of this Court within the purview of Section 482 of the Code of Criminal Procedure to act and exercise its inherent powers to prevent abuse of the process of any authority or Court or otherwise to secure the ends of justice to pass an appropriate order. This is one of such cases where such powers are required to be exercised for the fact that this Kali Khas Khas falls in the definition of seeds as envisaged under subsection (xviii) of Section 2 of the N.D.P.S. Act which broadly says that the seeds of opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom can be deemed to be the seeds of the poppy plant.

I am surprised that the learned Additional Sessions Judge, Ludhiana, had been very negligent even in not caring to open the N.D.P.S. Act to see for himself whether the Kali Khas Khas was covered by the provisions of the N.D.P.S. Act, 1985 or not. It appears that the learned counsel for the petitioner, who argued the bail matter before him had brought it to the notice of the trial Judge that the seeds does not fall within the definition of opium and the accusedpetitioner had not committed any offence. However, he brushed aside the argument saying that no law or definition has been shown wherefrom it could be found that Kali Khas Khas is not branded as opium. It is not expected from a senior Judge of the rank of Additional Sessions Judge to cursorily dispose of the bail matter without applying his mind after going through the relevant provisions of the Act. No doubt the offences committed under the N.D.P.S. Act are very serious and ordinarily the accused in such cases are not entitled to bail at random but that does not mean that it is not the duty of the Court to see that the Act is not being misused by the police for their personal or political aggrandisement. Many a time, it has been found that this Act has been misused by the police and, therefore, it is the duty of the Courts below who try such offences that they should discuss all the circumstances of each case for the grant or refusal of bail. As the learned Additional Sessions Judge has not done so, therefore, I while exercising my powers within the provisions of Section 439 of the Code of Criminal Procedure grant bail to the petitioner on his furnishing bail bonds in the amount of Rs. 5,000/ with one surety and a personal recognizance bond in the like amount to the satisfaction of the trial Court i.e. the Court of Shri R.K. Tyagi, Additional Sessions Judge, Ludhiana.

It is in the fitness of the case that this petition is treated as a petition for quashing as well and the notice is given to the respondent including the SI Bahadur Singh who has arrested the accused to explain as to why necessary action be not taken against him for having taken the law into his hands while arresting the accused. I order accordingly. Put up on 10.11.1997. Copy of the order be given Dasti.