Crl.Misc. No.M-1555 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Misc. No.M-1555 of 2009 Date of Decision: 19.1.2009 Virender Kumar Vij .....Petitioner Vs. State of Haryana ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Akshay Bhan, Advocate for the petitioner. .... RAJIVE BHALLA, J Prayer in this petition filed under Section 438 of the Code of Criminal Procedure is, for grant of anticipatory bail in case FIR No.417 dated 17.12.2008, registered under Sections 58/59 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the N.D.P.S. Act') and Sections 7 and 13 of the Prevention of Corruption Act, 1988, at Police Station Hodal, Distt. Faridabad. The petitioner is a serving Deputy Superintendent of Police posted at Hodal, Distt. Faridabad. As per the allegations in the FIR, ASI Ram Babu, apprehended one Nepal Singh for carrying narcotics. ASI, Ram Babu, informed the petitioner that Nepal Singh wanted his search to be conducted in the presence of a Gazetted Officer. On receipt of this information, the petitioner reached the spot and search of Nepal Singh was conducted in accordance with the procedure established under the N.D.P.S. Crl.Misc. No.M-1555 of 2009 2 Act and 750 gms. of narcotics were recovered from the polythene bag carried by Nepal Singh. Accordingly FIR No.50 dated 13.2.2008 was registered against Nepal Singh. One Bijan, a cousin brother of Nepal Singh made a complaint before the Inspector General of Police, Faridabad, for taking action against ASI, Ram Babu, for falsely implicating his brother namely;Nepal Singh. An affidavit dated 18.2.2008 was also filed by one Amar Chand alleging false implication of Rohtas s/o Gajraj and making allegations of payment of money. An enquiry was conducted by the Deputy Superintendent of Police, Palwal and it was found that ASI, Ram Babu, had received Rs.3,70,000/- for releasing Rohtas s/o Gajraj and reducing the quantity recovered from Mukhtiar and Udayvir to 100 gms., a small quantity, so as to facilitate their release. Thereafter, the concerned Deputy Superintendent of Police submitted another report dated 30.4.2008 recording a finding that ASI, Ram Babu, had orally told him that Rs.1,50,000/- had been paid to the petitioner out of the amount of Rs.3,70,000/-. Crl.Misc.No.13417-M of 2008 was filed by Nepal Singh for quashing of FIR No.50 dated 13.2.2008, wherein the State filed a reply. Para 3 thereof reads as follows :- “ That during the preliminary enquiry conducted by Sh.Hukam Singh, HPS, DSP, Palwal this facts have also come in the preliminary enquiry that ASI, Ram Babu, has received Rs.3,70,000/- from the complainant and gave Rs.1,50,000/- to Sh.Virender Singh Vij, HPS the then DSP, Hodal for showing recovery of 100 gm instead of 500 gms. From each accused.” Crl.Misc. No.M-1555 of 2009 3 On the basis of the reply, the following order came to be passed on 9.12.2008 :- “ It is not in dispute that the petitioner was wrongly implicated. In fact the offending material was recovered from Udaivir and Mukhtiar. So as to favour these two persons, the petitioner was implicated. This stands established from report filed by Deputy Commissioner of Police, Palwal dated 17.4.2008 that has been placed on record as Annexure P-3. Virender Kumar DSP and ASI Babu Ram have been found guilty in departmental inquiry. It has further been revealed that ASI Babu Ram has taken Rs.3,70,000/-. Rs.1,50,000/- out of the said amount was given to DSP, Sh.Virender Kumar. Adjourned to 11.12.2008. S.P. Palwal is required to remain present in Court to show as to what proceedings have been initiated against the offending officials including proceedings for commission of offence under Section 58 of the Narcotic Drugs and Psychotropic Substances Act, 1985.” As a result of the aforementioned orders, the present FIR came to be registered against the petitioner and ASI Ram Babu. Counsel for the petitioner submits that apart from a sentence recorded in the DSP's report that ASI Ram Babu had orally informed him that he had paid a sum of Rs.1,50,000/- to the petitioner, there is no other evidence against the petitioner. The petitioner has been falsely implicated, as the report is merely based upon the oral statement of a co-accused that is Crl.Misc. No.M-1555 of 2009 4 inadmissible in evidence. It is further submitted that neither Amar Chand nor Bijan have levelled any allegations against the petitioner in their complaints and, therefore, in the absence of any evidence, the petitioner be admitted to the concession of anticipatory bail. I have heard learned counsel for the petitioner, perused the reports and the orders passed in Crl.Misc.No.13417-M of 2008. Bail anticipating arrest, is a special remedy and cannot be claimed as a matter of right, particularly where such an order would thwart investigation. The allegation against the petitioner that he received Rs.1,50,000/- is pending investigation. Merely because his name does not appear in the complaints filed by Amar Chand and Bijan, would not entitle him to the exercise of discretion. The fact that the personal search of Mukhtiar and Udaivir was conducted in the petitioner's presence and the recovery of narcotics was reduced to only 100 gms., prima facie suggests the petitioner's involvement. The allegations against the petitioner, a serving Deputy Superintendent of Police, are serious in nature and would, therefore, require his custodial interrogation. Dismissed. 19.1.2009 (RAJIVE BHALLA) GS JUDGE