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Himachal Pradesh High Court · body

2018 DIGILAW 1059 (HP)

Rati Ram v. State of Himachal Pradesh

2018-06-11

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. Sequel to order dated 1.6.2018, ASI Jai Chand, Police Station, Padhar, District Mandi, H.P., has come present alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 2. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in Court, fairly states that bail petitioner has joined investigation in terms of order dated 1.6.2018 and is fully cooperating with the investigating agency. Mr. Thakur, further states that at this stage nothing is required to be recovered from the bail petitioner and as such, his custodial interrogation is not required and he can be ordered to be enlarged on bail subject to the condition that he shall make himself available for investigation and trial as and when called by the investigating agency. 3. Having carefully perused the record/status report, this Court finds that FIR No.51 of 2018, dated 1.5.2018 under Sections 18-61-85 of the Narcotic Drugs and Psychotropic Substances Act, came to be registered against the bail petitioner at police Station, Padhar, District Mandi, H.P., on the basis of secret information received by the police to the effect that the bail petitioner indulged in illegal cultivation of poppy substance i.e. opium. Allegedly, police confiscated 2000 plants of poppy, illegally cultivated by the bail petitioner on his fields. As per record/status report, police after having drawn samples, destroyed illegal cultivation of poppy plants. Report of FSL further suggests that plants allegedly confiscated by the Investigating Agency are the sample of opium poppy plants and falls within the definition of prohibited drugs, as defined under Narcotic Drugs and Psychotropic Substances Act. 4. Mr. Vijay Kumar Verma, learned counsel representing the bail petitioner, states that bail petitioner has been falsely implicated in the case. He further states that otherwise also, there is no specification, if any, prescribed in thereport of FSL with regard to quantity of narcotic substance alleged to have been recovered from the bail petitioner and as such, rigour of Section 37 are not attracted in the present case. 5. He further states that otherwise also, there is no specification, if any, prescribed in thereport of FSL with regard to quantity of narcotic substance alleged to have been recovered from the bail petitioner and as such, rigour of Section 37 are not attracted in the present case. 5. Learned Additional Advocate General, while refuting the aforesaid contention put forth by learned counsel for the petitioner, states that though under Narcotic Drugs and Psychotropic Substances Act “small quantity” and ‘ Commercial quantity’ with respect to cultivation of opium poppy is not specified separately but the offence in this regard is covered under clause (c) of Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and as such, prayer made in the instant petition for enlargement on bail, deserves to be rejected. 6. Record/status report clearly reveals that five plants each from six fields were sent for chemical analysis, whereas remaining plants were destroyed and as such, there appears to be considerable force in the arguments of learned counsel representing the petitioner that report of FSL is only with regard to 25-30 plants allegedly sent by the Investigating Agency to FSL, Junga. Admittedly, there is no report, if any, qua remaining plants allegedly uprooted from the fields of the bail petitioner. 7. FSL, Junga has rendered its report qua 25-30 plants and not qua the remaining plants. Otherwise also, there is nothing on record from where it can be inferred that psychotropic substance, if any, in commercial quantity came to be recovered from the fields owned and possessed by the bail petitioner and as such, rigour of Section 37 are not attracted in the present case. Though, aforesaid aspects of the matter are to be considered and decided by the learned court below on the basis of the material available on record, however, at this stage, this Court taking note of the fact that the bail petitioner has already joined the investigation and nothing is required to be recovered from him, does not see any reason to keep him behind the bars for indefinite period. 8. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. 8. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law. 9. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr. decided on 6.2.2018 has categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon’ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the judgment are reproduced as under: 2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons 10. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons 10. 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. 11. 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. 12. Consequently, in view of the above, order dated 1.6.2018, passed by this Court, is made absolute, subject to his furnishing personal bond in the sum of Rs. one lac with one local surety in the like amount to the satisfaction of the Investigating Officer, with following conditions: 1. 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; 2. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; 3. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; 3. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and 4. He shall not leave the territory of India without the prior permission of the Court. 13. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 14. 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 petition stands accordingly disposed of.