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2018 DIGILAW 2109 (HP)

Santosh v. State Of Himachal Pradesh

2018-11-29

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely Santosh, who is a student of evening College, Shimla, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, praying therein for grant of regular bail in connection with FIR No. 107/18 dated 30.9.2018, under Sections 20 and 29 of NDPS Act, registered at P.S. Kumarsain, District Shimla, H.P. 2. Sequel to orders dated 1/15.11.2018, passed by this Court, ASI Noop Ram I/o. P.S. kumarsain, District Shimla, HP, has come present in Court alongwith record of the case. Mr. Amit Dhumal, learned Deputy 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, 3. Perusal of status report/record suggests that on 30.9.2018, police party stopped one motorcycle bearing No. HP64-6578 being driven by the present bail petitioner for checking. Since bail petitioner and co-accused, who was a pillion rider, got perplexed, police checked the vehicle and recovered 110 grams of Charas. Such recovery of Charas came to be effected in the presence of person namely Rajesh, who was also stopped by police for checking at that relevant time. After completion of necessary codal formalities, police lodged FIR as detailed herein above and since then, bail petitioner is behind the bars. Coaccused namely Anurag Negi, has been already enlarged on bail by the learned District Judge, Kinnaur at Rampur on 25.10.2018. 4. Mr. G.S. Rathour, learned counsel representing the bail petitioner while referring to the status report/record vehemently argued that no recovery has been effected from the conscious possession of the bail petitioner, rather he has been falsely implicated and as such, he deserves to be enlarged on bail. Mr. Rathour, further contended that though guilt, if any, of the bail petitioner is yet to be proved in accordance with law, but even if its presumed that bail petitioner was carrying Charas weighing 110 grams, he is entitled to bail because contraband allegedly recovered from the bail petitioner is of intermediate quantity and as such, rigours of Section 37 of the Act are not attracted in the present case. Lastly, Mr. Lastly, Mr. Rathour, contended that bail petitioner is a student and in case, he is not released on bail and kept behind the bars for an indefinite period, his entire career would be spoiled/ruined and as such, prayer for grant of bail may be considered sympathetically. He also contended that there is nothing to suggest that in past, bail petitioner was indulging in such like activities. 5. Mr. Amit Dhumal, learned Deputy Advocate General, while fairly acknowledging the factum with regard to completion of investigation, stated that though nothing is required to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve to be enlarged on bail. Mr. Dhumal, further contended that bail petitioner hails from Nepal and in the event of his being enlarged on bail, it would be difficult for investigating agency to ensure his presence during trial. 6. Having heard learned counsel for the parties and perused material available on record, this Court is not in agreement with Mr. G.S. Rathour, learned counsel for the petitioner that there is no materiel available on record, to demonstrate that bail petitioner was not apprehended carrying 110 grams charas, rather record/material available on record reveals that contraband was recovered in the presence of some independent person. However, having taken note of the fact that 110 grams of Charas came to be recovered from the motorcycle being driven by the bail petitioner, this Court is of the view that prayer made for grant of bail can be considered because keeping in view the quantity of contraband, rigours of Section 37 of the Act are not attracted in the present case. No doubt, bail petitioner has indulged in heinous crime, which has certainly serious impact on society, but this Court cannot loose sight of the fact that bail petitioner is a student and in case, he is not released on bail at this stage, his academic career would be ruined. Mr. Rathour, learned counsel, informs this Court that steps are being taken by the parents of the bail petitioner to put him in rehabilitation centre so that he does not become drug addict. 7. Mr. Rathour, learned counsel, informs this Court that steps are being taken by the parents of the bail petitioner to put him in rehabilitation centre so that he does not become drug addict. 7. Leaving everything aside, this Court finds no material available on record suggestive of the fact that bail petitioner indulged in such activities in past also, rather circumstances as well as material available on record indicate that bail petitioner is first offender and in fact, he has become addict. Moreover, investigation is complete and nothing is required to be recovered from the bail petitioner and as such, this Court sees no reason to keep the bail petitioner behind bars for an indefinite period, especially when guilt, if any, of him is yet to be proved in accordance with law. Repeatedly, it has been held by the Hon''ble Apex Court as well as this Court that freedom of an individual is of utmost importance and same cannot be curtailed for an indefinite period because one is deemed to be innocent till the time he/she is not found guilty. 8. 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 a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon''ble Apex Court further held that while considering prayer for grant of bail, 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. Hon''ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid 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. The relevant paras of the aforesaid 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. 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. 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 Re-Inhuman Conditions in 1382 Prisons. 9. 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. 10. 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. 10. 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. 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." 11. 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. 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." 12. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 12. 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. 13. In view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 50,000/- with one local surety in the like amount to the satisfaction of concerned JMIC/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/her 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. 14. 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. 15. 14. 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. 15. 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. Copy dasti.