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2019 DIGILAW 1488 (HP)

Dharminder @ Dhruv v. State of Himachal Pradesh

2019-10-01

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Bail petitioners namely, Dharminder @ Dhruv, Ravi Sharma and Jagdev, who are behind the bar since 19.5.2019, have approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.114/2019, dated 19.5.2019, under Sections 21 and 29 of the Narcotics Drugs & Psychotropic Substances Act (for short "ND&PS Act"), registered at police Station, Sadar, District Solan, Himachal Pradesh. 2. Pursuant to order dated 18.9.2019, ASI Bhagat Ram has come present alongwith the record. Mr. Kunal Thakur, learned Deputy 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. Record/Status report made available to this Court reveals that on 19.5.2019, police party stopped car bearing registration No. HP-03(T)-4369 for checking of the documents. Since, the occupants of the car got perplexed, police associated independent witnesses on the spot and carried out the search of the car and allegedly recovered 25.33 grams of heroin. All the bail petitioners were travelling in the car at the time of alleged recovery. Since, no plausible explanation came to be rendered on record on behalf of the bail petitioners, police after completion of necessary codal formalities registered the case against them under Sections 21 and 29 of the Act on 19.5.2019 and since then they are behind the bar. 4. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting that the challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioners, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioners, they do not deserve any leniency. He further stated that till date, none of the bail petitioners have made truthful disclosure with regard to source, from where they purchased the contraband allegedly recovered from them. He further contended that in the event of petitioners' being enlarged on bail, there is every possibility of the petitioners indulging in illegal activity again and as such, their prayer for enlargement on bail, at this stage, may be rejected. 5. Mr. Satyen Vaidya learned Senior Advocate and Mr. He further contended that in the event of petitioners' being enlarged on bail, there is every possibility of the petitioners indulging in illegal activity again and as such, their prayer for enlargement on bail, at this stage, may be rejected. 5. Mr. Satyen Vaidya learned Senior Advocate and Mr. Lalit K. Sharma,Advocate, while praying for grant of bail on behalf of the bail petitioners, contended that though recovery, if any, of contraband is yet to be proved in accordance with law by the Investigating Agency by leading cogent and convincing evidence, but even otherwise quantity of contraband allegedly recovered from the conscious possession of the bail petitioners is of intermediate quantity and as such, rigour of section 37 are not attracted in the case. Above named counsel further argued that record made available to this Court, nowhere suggest that the bail petitioners are drug peddlers, rather they have become addicts and as such, required to be taken to some Rehabilitation Centre. Lastly, learned counsel representing the bail petitioners, contended that for the last 4 1/2 months bail petitioners are behind the bar and there is none in their family to look after their small children and as such, their prayer for grant of bail may be accepted. 6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that 25.33 grams of heroin came to be recovered from the car bearing registration No. HP-03(T) 4369 on 19.5.2019 and at the time of recovery, bail petitioners were travelling in the car. Record further reveals that bail petitioners have not disclosed the source, but there is nothing on record suggestive of the fact that in past bail petitioners had been indulging in such activities, rather it appears that bail petitioners, who have become drug addicts came in touch with some Foreign National at Delhi, whose identity is yet to be established. No doubt, offence alleged to have been committed by the bail petitioners is of very serious nature, but this Court cannot loose the sight of the fact that all the bail petitioners are very young and in case they are not provided adequate treatment at this stage, they may become hardened criminal. Quantity of contraband alleged to have been recovered from the bail petitioners is also of intermediate quantity and as such, rigour of Section 37 may not be attracted in the present case. Quantity of contraband alleged to have been recovered from the bail petitioners is also of intermediate quantity and as such, rigour of Section 37 may not be attracted in the present case. 7. Learned counsel representing the bail petitioners have assured this Court that bail petitioners would be taken to some good Rehabilitation Centre, so that in future they may not indulge in such activities. Moreover, bail petitioners have already suffered for more then 4 = months and as such, this Court sees no reason to curtail their freedom for indefinite period during trial, especially when their guilt, if any, is yet to be proved in accordance with law. Apprehension expressed by learned Additional Advocate General with regard to petitioners fleeing from justice in the event of their being enlarged on bail, can be best met by putting bail petitioners to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioners. 8. It has been repeatedly held by Hon'ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt 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 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 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 10. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 49; 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. 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. 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. 12. 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. 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. Consequently, in view of the above, bail petitioners have carved out a case for grant of bail and as such, present petitions are allowed. Petitioners are ordered to be enlarged on bail subject to their furnishing personal bonds in the sum of Rs. 2,00,000/-(Rs. Two Lakh) with two local sureties in the like amount each, to the satisfaction of the learned trial Court, besides the following conditions: a. they shall make themselves 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. they shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. they 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 d. they shall not leave the territory of India without the prior permission of the Court. 14. It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 15. 14. It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, 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 these applications alone. The bail petitions stand disposed of accordingly.