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Himachal Pradesh High Court · body

2018 DIGILAW 9 (HP)

Pawan Dixit v. State of Himachal Pradesh

2018-01-02

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. Instant bail petition filed under Section 439 CrPC has been preferred by the bail petitioner namely Pawan Dixit, who is in custody since 12.9.2017, for grant of regular bail in FIR No. 176/17 dated 1.8.2017, under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station, Sadar, District Kullu, Himachal Pradesh. 2. Sequel to order dated 26.12.2017, HC Jai Singh has come present with the record. Mr. R.K. Sharma, learned Deputy Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency, perusal whereof suggests that FIR mentioned above, came to be registered at the behest of HC Jai Singh, who alleged that on 11.8.2017, police patrolling party saw a person namely Harsh Kumar, coming from Akhara side on foot. Since above named person became perplexed after seeing the police, he was stopped but he made an attempt to run away from the place and in this process, he threw one packet. Above named person was subsequently apprehended by the patrolling party near the place of alleged occurrence. On search of the packet allegedly dropped by the person namely Harsh, same was found to be “Heroin”, which subsequently, on weighment came to be 9.20 grams. Above named person later on disclosed to the police that he is a drug addict and had purchased “Heroin” as recovered from his custody by the police, from one person at Delhi. He also disclosed that the bail petitioner (Pawan Dixit) accompanied him to that person at Delhi. On the aforesaid disclosure made by Harsh, a case came to be registered against the bail petitioner under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act. On 12.9.2017, i.e. after one month of registration of FIR, present bail petitioner came to be arrested and since then he is in custody. 3. Mr. Prem P. Chauhan, learned counsel representing the bail petitioner, while referring to the record/status report strenuously argued that no case, if any, is made out under Sections 21 and 29 of the Act ibid against the bail petitioner, as such, he deserves to be released on bail. Mr. 3. Mr. Prem P. Chauhan, learned counsel representing the bail petitioner, while referring to the record/status report strenuously argued that no case, if any, is made out under Sections 21 and 29 of the Act ibid against the bail petitioner, as such, he deserves to be released on bail. Mr. Chauhan, further contended that as per own story of the investigating agency, “Heroin” weighing 9.20 grams was recovered from co-accused Harsh, who has already been released on bail by the learned Sessions Judge, Kullu. Mr. Chauhan, further contended that though there is nothing on record to prove involvement of the present bail petitioner in the crime allegedly committed by him as well as other co-accused, but even if the quantity of contraband, which is less than ‘commercial’ quantity, allegedly recovered from the co-accused Harsh is taken into consideration, present bail petitioner deserves to be enlarged on bail. Lastly, Mr. Chauhan, contended that as per investigation carried out by the investigating agency till date, it has nowhere come that contraband, if any, was ever recovered from the conscious possession of the bail petitioner, rather, role imputed/ascribed to him is that he accompanied co-accused Harsh to the person at Delhi, who later on gave “Heroin” to Harsh. While making prayer for enlargement of bail to the bail petitioner, Mr. Chauhan, contended that the bail petitioner is a local resident and shall always remain available for trial/investigation and there is no likelihood of his fleeing from justice. Mr. Chauhan, contended that bail can not be denied to the bail petitioner on the ground that some FIR’s were lodged against him in the past, because present case is required to be decided on the basis of investigation carried out in the present case. 4. Mr. R.K. Sharma, learned Deputy Advocate General, while opposing the aforesaid prayer, having been made on behalf of the bail petitioner, contended that it has specifically come in the investigation that the person namely Harsh, who is a drug addict, was taken to Delhi by the bail petitioner and as such, his involvement in the instant case can not be ruled out. Mr. Mr. Sharma, further contended that though there is nothing on record to suggest that contraband was recovered from conscious possession of the present bail petitioner, but taking note of his past conduct, especially when he has been found involved in so many cases under Narcotic Drugs & Psychotropic Substances Act, statement having been made by the co-accused Harsh can not be brushed aside, solely on the ground that contraband was recovered from conscious possession of Harsh and not from the bail petitioner. Leaned Deputy Advocate General, contended that in the event of petitioner’s being enlarged on bail, there is every possibility of his fleeing from justice, and he may make an attempt to dissuade the prosecution witnesses from deposing against him. However, Mr. Sharma, contended that in case this Court, after having perused record, is inclined to grant bail to the present bail petitioner, he may be put to stringent conditions so that his presence is secured during trial. 5. I have heard the learned counsel for the parties and gone through the record carefully. 6. Perusal of record suggests that 9.20 grams of “Heroin” came to be recovered from the conscious possession of the co-accused namely Harsh, who has been already enlarged on bail by learned Sessions Judge, Kullu. Investigating agency, on the basis of a statement made by co-accused Harsh has registered present case against the bail petitioner under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act. At present, there is no direct evidence to suggest involvement of the present bail petitioner in the crime. Apart from above, investigating agency has also not placed on record any evidence in support of claim of co-accused Harsh that present bail petitioner accompanied him to Delhi, from where he allegedly purchased “Heroin” from some unknown person. Though aforesaid aspect of the matter is to be considered and decided by the learned trial Court on the basis of evidence to be adduced on record by the prosecution, this Court, after having taken note of the fact that main accused, from whose conscious possession “Heroin” was recovered, stands already enlarged on bail, sees no reason to keep the bail petitioner in custody for indefinite period. 7. 7. Leaving everything aside, quantity allegedly recovered from co-accused, is less than commercial and by now, it is settled that rigors of Section 37 of the Act ibid are applicable in cases registered under Sections 19, 24 and 27A, as well as offences involving ‘commercial’ quantity. Conditions as contained under Section 37 of the Act ibid do not apply to any other offence. In the instant case, petitioner has been booked for having committed offence punishable under Sections 21 and 29 of the Act ibid, and quantity involved is less than commercial quantity as such, present bail petitioner is also entitled for bail like the other co-accused. 8. So far as argument having been made by the learned Deputy Advocate General that taking note of previous conduct of the bail petitioner, he is not entitled to bail is concerned, this Court is of the view that registration/pendency of such cases, if any, against bail petitioner is of no consequence as far as his legal right to be admitted on bail in the case at hand is concerned. Moreover, as has been taken note above, there is no direct involvement of present petitioner in the case, because contraband has been recovered from the conscious possession of co-accused Harsh, who subsequently named present bail petitioner, but there is nothing on record adduced by the investigating agency that they, after having received information from co-accused, recovered narcotic substance, if any, from the conscious possession of the bail petitioner. As far as another apprehension expressed by the learned Deputy Advocate General with regard to petitioner’s fleeing from justice, in case bail is granted to him, is concerned, same can be met by putting bail petitioner to stringent conditions. 9. Otherwise also, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the investigating agency by leading cogent and convincing evidence. There is no material placed on record by investigating agency suggestive of the fact that in the event of enlarging the bail petitioner on bail, he may flee from justice. Petitioner, who is a local resident of area, shall always remain available for investigation/trail. Otherwise, the aforesaid apprehension expressed by the investigating agency can be met by putting bail petitioner to stringent conditions. 10. Petitioner, who is a local resident of area, shall always remain available for investigation/trail. Otherwise, the aforesaid apprehension expressed by the investigating agency can be met by putting bail petitioner to stringent conditions. 10. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that 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. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been 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. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , laid down the following parameters for grant of bail:- “111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” (Emphasis supplied) 12. Hon'ble Apex Court, in Sundeep Kumar Bafna versus State of Maharashtra (2014)16 SCC 623 , has held as under:- “8. Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being “brought before a Court”, the present provision postulates the accused being “brought before a Court other than the High Court or a Court of Session” in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State (Delhi Admn) (1978) 1 SCC 118 , there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. As observed in Gurcharan Singh vs State (Delhi Admn) (1978) 1 SCC 118 , there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. ‘where there is a right there is a remedy’. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word ‘custody’ the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of ‘Committal of cases to the Court of Session’ because of a possible hiatus created by the CrPC.” 13. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: “This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , 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 nor 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 a 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 and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. 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 and 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 that 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.” 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 also, normal rule is of bail and not jail. Apart from above, 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. Petitioner is local resident of Himachal Pradesh and shall remain available to face the trial and to undergo imprisonment, if any, which may be imposed on conclusion of the trial. 15. The Apex Court in Prasanta Kumar Sarkar versus 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. 16. 16. In view of above, present petition is allowed and the petitioner is ordered to be enlarged on bail in the aforementioned FIR, subject to his furnishing personal bonds in the sum of Rs.5,00,000/-(Rupees Five Lakh) with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, 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. (e) He shall deposit passport, if any, held by him, with the Investigating Officer. 17. 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. 18. 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 petition alone. The petition stands accordingly disposed of.