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Himachal Pradesh High Court · body

2018 DIGILAW 104 (HP)

MANOJ KUMAR v. STATE OF HIMACHAL PRADESH

2018-01-09

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioner namely Manoj Kumar, who is in custody since 9.8.2017, has approached this Court by way of instant bail petition filed under Section 439 of Cr. PC, praying therein for grant of regular bail in FIR No. 237/17 dated 8.8.2017, under Sections 21, 29, 16-61-85 of Narcotic Drugs and Psychotropic Substances, Act, registered at police station Haroli District Una, H. P. 2. Sequel to order dated 5. 12. 2017, ASI Parkash Chand, I. O. , P. S. Haroli, District Una, H. P. , has come present alongwith records. Record perused and returned. Mr. P. M. Negi, learned Additional Advocate General, has also placed on record status report, which has been prepared on the basis of record of investigating agency. 3. Perusal of report/record suggests that aforesaid FIR came to be registered against the bail petitioner at the behest of Sub-Inspector Ankush Dogra, who alleged that he after having received secrete information that the bail petitioner is indulged in illegal trade of psychotropic substance, apprehended him near Badoli Collage Gate. Allegedly, 6.01 grams of heroin came to be recovered from the conscious possession of the bail petitioner and accordingly, he was arrested on 9.8.2017, and since then he is in custody. 4. Mr. N. K. Thakur, learned Senior counsel representing the bail petitioner, while referring to the record as well status report, vehemently contended that 6. 01 grams of heroin was not recovered from the conscious possession of the bail petitioner, rather its actual weight is 5. 084 grams as has been reported by the FSL and as such, rigours of Section 37 of the Act, are not attracted to the present case. Mr. Thakur, further contended that investigation in the present case, is complete and challan stands filed in the competent court of law and as such, no fruitful purpose would be served by keeping the bail petitioner in custody, who has already suffered for more than seven months. While referring to the records, learned Senior Advocate, contended that on the basis of information given by the bail petitioner that he had purchased the aforesaid heroin from one Nigerian namely Emeka P. Kanikwu, S/o Kanikwu R/o delter State Nigeria at present R/o WZ-4, G/F, Khasra No. 665, Nawada Village Uttam Nagar, New Delhi, police has already arrested the aforesaid person who is the main source of contraband in the case at hand. Mr. Mr. Thakur, further contended that contraband, if any, recovered from the aforesaid person, cannot be said to have been recovered from the conscious possession of the present bail petitioner because it is an admitted case of Investigating Agency that only 6. 01 grams of heroin was recovered from the bail petitioner on 8/9. 8. 2017. Learned Senior Counsel further contended that there is no evidence at present available on the file suggestive of the fact that the bail petitioner purchased 6. 01 grams of heroin from the main source at Delhi for illegal trade and as such, present bail petitioner deserves to be enlarged on bail. Lastly, Mr. Thakur, contended that there is no material adduced on record by the Investigating Agency suggestive of the fact that petitioner was found involved in such like cases in past also and he was ever convicted by the courts of law. 5. Mr. P. M. Negi, learned Additional Advocate General, while opposing aforesaid prayer for grant of bail made on behalf of the bail petitioner contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he is not entitled to be released on bail, rather he needs to be dealt with very severely. Mr. Negi further contended that it stands duly proved on record that the bail petitioner had been purchasing the psychotropic substance from the source at Delhi, who subsequently, came to be arrested at the behest of the bail petitioner only. Learned Additional Advocate General further contended that police had received secrete information that bail petitioner indulges in illegal trade of psychotropic substance and as such, conducted raid and found the bail petitioner involved in illegal trade of psychotropic substance. While refuting the contention of the learned Senior Counsel that bail petitioner was apprehended with inter-mediate quantity, Mr. Negi contended that since bail petitioner was acting as supplier of main source, from whose custody, allegedly 471 grams of heroin was recovered from Delhi, it cannot be concluded that only intermediate quantity of heroin was recovered from the concisions possession of the bail petitioner. While opposing aforesaid prayer of bail having been made on behalf of the bail petitioner, Mr. While opposing aforesaid prayer of bail having been made on behalf of the bail petitioner, Mr. Negi, contended that in the event of petitioner's being enlarged on bail, wrong message would go to the society because such miscreants including bail petitioner have spoiled the number of school and college going children by providing them psychotropic substance. 6. I have heard learned counsel for the parties as well as carefully gone through the record. 7. After having perused record/status report, it clearly emerges that Investigating Agency after having received a secret information apprehended the bail petitioner with contraband i. e. heroin weighing 6.01 grams, which was subsequently reported to be 5.084 grams by the FSL Junga. It also emerge from the record that during investigation, bail petitioner disclosed to the Investigating Agency that he procured the aforesaid psychotropic substance from one person at Delhi, who is indulged in illegal trade of psychotropic substance. On the basis of aforesaid information provided by the bail petitioner, police arrested one Nigerian from Delhi and recovered 471.7 grams heroin and 0.56 grams cocaine from his conscious possession. Save and except, FIR which came to be lodged at the behest of Sub-Inspector Ankush Dogra, there is no evidence available at this stage, suggestive of the fact that the bail petitioner had been purchasing or purchased the aforesaid quantity of heroin from the Nigerian at Delhi for the purpose of illegal trade of psychotropic substance. Though, FIR finds mention that bail petitioner had been selling psychotropic substance but to that effect, there is no evidence at present available on file. Similarly, it is also not in dispute that 5.084 grams of heroin came to be recovered from the conscious possession of the bail petitioner on 8/9.8.2017 and as such, this Court finds force in the argument of learned Senior Counsel, representing the bail petitioner that recovery of heroin, if any, from the bail petitioner is of intermediate quantity and by no stretch of imagination, it can be said that 471.7 grams of heroin was recovered from the conscious possession of the bail petitioner, as is projected by the learned Additional Advocate General. 8. True, it is that there is evidence available on record suggestive of the fact that main source came to be arrested at the behest of present bail petitioner and from his conscious possession, 471. 8. True, it is that there is evidence available on record suggestive of the fact that main source came to be arrested at the behest of present bail petitioner and from his conscious possession, 471. 7 heroin came to be recovered, but as has been taken note above, there is no evidence collected on record by the prosecution at this stage, from where, it can be inferred that bail petitioner was indulging in illegal trade of psychotropic substance with Nigerian arrested at Delhi. Admittedly, no evidence is available on record with regard to the money transaction, if any, between the bail petitioner and the main source at Delhi, who is also in custody. Similarly, this Court finds from the record that no call detail has been collected or placed on record to demonstrate that bail petitioner and Nigerian, who is a main source, were in constant touch and petitioner had been sending/paying some money for procurement of psychotropic substance. 9. Though aforesaid aspect of the matter is to be considered and decided by the court below on the basis of evidence available on record by the prosecution, but this Court after having carefully perused material available on the record, is not inclined to accept the contention of learned Additional Advocate General that the bail petitioner is also involved in illegal trade of psychotropic substance with the main source, who came to be arrested at the behest of the present bail petitioner. 10. As per report of FSL, 5.084 grams of heroin was recovered from the conscious possession of the bail petitioner, which quantity is little higher than the smaller quantity and is of an intermediate quantity and as such, rigours of Section 37 of the Act, are not attracted in the present case. 11. This Court cannot lose sight of the fact that the bail petitioner is in custody for more than seven months and guilt, if any, of his is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence and as such, freedom of the bail petitioner cannot be allowed to be curtailed for an indefinite period, especially when investigation in the present case is complete and challan stands filed in the competent Court of law. 12. 12. At this stage, it may be noticed that the bail petitioner had approached this Court immediately after his arrest, by way of bail petition, but same was withdrawn. Learned Senior Counsel representing the bail petitioner while fairly conceding the aforesaid fact contended that new bail petition has been filed because of changed circumstances. At the time of withdrawal of the earlier application investigation was not complete and apprehension was expressed by the Investigating Agency that in the event of petitioner's being enlarged on bail, he may influence the prosecution witnesses but now since investigation is complete and challan stands filed, there is no possibility of the petitioner's influencing or dissuading the prosecution witnesses from deposing against him. 13. Apart from above, nothing has been placed on record from where it can be inferred that the bail petitioner was found involved in such like cases earlier in past also and for that he was also convicted by the courts of law. 14. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 15. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, 2012 1 SCC 40 ; held as under:- "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson. " 16. In Manoranjana Sinh Alias Gupta versus CBI, 2017 5 SCC 218 , The Hon'ble Apex Court has held as under:- "This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted. " 17. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another, 2010 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 18. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, 2017 2 SCC 731 , relevant para whereof has been reproduced herein below:- "11. This Court has consistently recognised the right of the accused for a speedy trial. 18. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, 2017 2 SCC 731 , relevant para whereof has been reproduced herein below:- "11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, 1994 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, 1996 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), 1999 9 SCC 252 , and Babba v. State of Maharashtra, 2005 11 SCC 569 ). 19. In view of the aforesaid discussion, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 237/17 dated 8. 8. 2017, under Section 21, 29, 16-61-85 of Narcotic Drugs and Psychotropic Substances, Act, registered at police station Haroli District Una, H. P. , on his furnishing personal bonds in the sum of Rs. 5,00,000/- with two local sureties in the like amount to the satisfaction of learned trial Court with following conditions: a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court. 20. 20. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 21. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The bail petition stands disposed of accordingly.