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Himachal Pradesh High Court · body

2019 DIGILAW 1942 (HP)

Rajeev Kumar v. State Of Himachal Pradesh

2019-12-17

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - Bail petitioner, namely Rajeev Kumar, who is behind the bars since 14.5.2019, has approached this Court in the instant proceedings filed under S. 439 CrPC, for grant of regular bail in FIR No. 54, dated 26.4.2019 under Ss. 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter, ''NDPS Act'') and S.18C of Drugs and Cosmetics Act (hereinafter, "DC Act"). 2. Sequel to order dated 29.11.2019, ASI Rajpal, Police Station, Majra, Sirmaur, Himachal Pradesh has come present with the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned. 3. Close scrutiny of the record made available to this Court reveals that on 25.4.2019, premises namely Apple Field International situate in Village Puruwala, Tehsil Paonta Sahib, District Sirmaur, Himachal Pradesh, came to be raided by the Police, on the basis of secret information. Record reveals that alongwith Police, Drug Inspector, namely Suresh Kumar inspected the record and documents of the Factory mentioned herein above, but the fact remains that no inconsistency, if any, in the documents as well as stock available in the Factory was found. Police record reveals that apart from the Factory premises, Police also raided/searched the store/godown allegedly possessed by M/s Apple Field International, from where huge quantity of prohibited drugs came to be recovered. Mr. Ram Swaroop i.e. owner of the store/godown revealed to the police that he had given the premises to M/s Apple Field International on monthly rent. Assistant Drug Controller after having inspected the contraband allegedly recovered from the premises, gave his report as under: 4. Since no plausible explanation came to be rendered on behalf of the bail petitioner, who happened to be the owner of M/s Apple Field International with regard to the contraband allegedly recovered from the store/godown owned by Ram Swaroop, a case under S.21 of the NDPS Act and S.18C of the DC Act, came to be registered against him as well as other accused namely Tarun Batra, Dinesh Kumar, Ashish Sardana etc. Co-accused namely Tarun Batra and Ashish Sardana stand enlarged on bail vide judgment dated 2.9.2019 passed by this Court in CrMP(M)''s Nos. Co-accused namely Tarun Batra and Ashish Sardana stand enlarged on bail vide judgment dated 2.9.2019 passed by this Court in CrMP(M)''s Nos. 1423 and 1450 of 2019, whereas, present bail petitioner alongwith co-accused Dinesh Kumar is behind the bars and yet another accused namely Atishore, is absconding. 5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of the Challan in the competent Court of law, contended that though nothing remains to be recovered from the bail petitioner but keeping in vie the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Mr. Bhatnagar, learned Additional Advocate General further contended that though as per investigation, no inconsistency in the documents as well as stock came to the fore during the raid of the factory i.e. M/s Apple Field International, but there is ample evidence suggestive of the fact that store/godown, from where huge contraband came to be recovered was under the tenancy of M/s Apple Field International. While referring to the statement of owner of the godown, Mr. Bhatnagar contended that rent qua premises in question, from where huge quantity of contraband came to be recovered, was being paid by M/s Apple Field International and, as such, it cannot be said that bail petitioner, who happened to be the owner of Apple Field International, had no connection with the same. While referring to the report of SFSL, Junga, Mr. Bhatnagar, learned Additional Advocate General contended that wrappers, lids and empty bottles allegedly recovered from the godown/store, taken on rent by M/s Apple Field International, have matched with the wrappers and bottles being used by M/s Apple Field International. 6. Mr. Sanjeev Bhushan, learned Senior Advocate duly assisted by Mr. Ajay Shandil, Advocate, appearing for the bail petitioner, while refuting aforesaid submissions made by learned Additional Advocate General, contended that there is no evidence worth the name available on record suggestive of the fact that the godown/store, from where contraband allegedly came to be recovered was taken on rent by M/s Apple Field International because, as per own case of the investigating agency, rent deed was in the name of Dinesh Kumar, who has otherwise no connection with M/s Apple Field International. Mr. Mr. Bhushan, learned Senior Advocate further contended that as per own case of the investigating agency, only two bottles containing prohibited drug, allegedly manufactured by M/s Apple Field International, were recovered from the store/godown owned by Ram Swaroop, as such, no case, if any, is made out against the bail petitioner, under S.21 of the NDPS Act. Lastly, Mr. Bhushan, learned Senior Advocate contended that the Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, who has otherwise suffered for more than six months, as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period during trial. 7. Having heard learned counsel for the parties and perused the material available on record, this court finds that as per documents adduced on record by investigating agency, bail petitioner Rajeev Kumar, is the owner of M/s Apple Field International. But case of the investigating agency is that the co- accused Ashish Sardana and Tarun Batra are the real owners of the factory in question. As per investigating agency, co-accused Tarun Batra used to get some money on account of commission from M/s Apple Field International whereas, co-accused Ashish Sardana used to fund bail petitioner for manufacture of drugs in the factory namely M/s Apple Field International. 8. It is not in dispute that no contraband ever came to be recovered from the factory premises, rather, as per own case of the investigating agency, stocks as well as documents in the factory in question were found to be in order. Though, the case of the investigating agency is that the store/godown, from where huge quantity of contraband came to be recovered, was taken on rent by M/s Apple Field International, but the rent deed adduced on record clearly reveals that the agreement to rent out/lease out the premises in question was entered into between accused Dinesh Kumar and Ram Swaroop. Though Ram Swaroop, in his statement has stated that he has given shop/gown to M/s Apple Field International and he had been receiving rent qua the same from above named Factory but, there is no documentary evidence at this stage to prove the tenancy, if any, of M/s Apple Field International qua the premises, from where contraband allegedly came to be recovered. Though the investigating agency has made an endeavour to carve out a case that the co-accused Dinesh Kumar, in whose name agreement was executed, was an employee of M/s Apple Field International, but, unfortunately, at this stage there is no evidence that the co-accused Dinesh was an employee of M/s Apple Field International. 9. Interestingly, Ram Swaroop, who happened to be owner of the store/godown though claimed that he had rented out premises in question to M/s Apple Field International, but he has also stated that co-accused Tarun Batra used to pay the rent. As has been taken note herein above, though investigating agency has claimed that Tarun Batra and Ashish Sardana are the real owners but material available on record, especially the Registration Certificate, clearly reveals that the bail petitioner Rajeev Kumar happened to be the owner of M/s Apple Field International. 10. During investigation, Police found that the premises in question, which were allegedly rented out to M/s Apple Field International, on 13.8.2016, for a period of 11 months, have been further rented out/leased out in favour of co-accused Ekta Tiwari. Investigation reveals that co-accused Dinesh Kumar, who actually had facilitated hiring of the premises in question, if any, in favour of M/s Apple Field International also facilitated rent lease inter se accused Ekta Tiwari and Ram Swaroop on 20.12.2016. It clearly emerges from the record that on the basis of subsequent rent deed entered inter se Ekta Tiwari and Ram Swaroop, premises in question was further leased to Ekta Tiwari, as named herein above. Though there is no concrete evidence available on record, suggestive of the fact that the premises in question were let out to M/s Apple Field International, but even if it is presumed that same were leased out to M/s Apple Field International, in terms of lease deed dated 13.8.2016, same may not have any relevance because that rent deed was only valid for 11 months. 11. Though this court is in agreement with Mr. 11. Though this court is in agreement with Mr. Sudhir Bhatnagar, learned Additional Advocate General that mere expiry of lease deed inter se M/s Apple Field International and Ram Swaroop cannot be made basis to conclude that possession of M/s Apple Field International over the premises in question was not with M/s Apple Field International, after expiry of lease deed, but as has been taken note herein above, premises in question subsequently stood leased out in favour of co-accused Ekta Tiwari, who in turn got allotted the GST number in favour of M/s Pex International by showing on the papers that M/s Pex is situate in the premises in question, from where contraband allegedly came to be recovered. Report of SFSL, which has been relied upon heavily by learned Additional Advocate General nowhere suggests/proves that the contraband, allegedly recovered from the premises in question belonged to the factory owned by bail petitioner, rather the same suggests that wrappers/ empty bottles allegedly recovered from the premises in question match with the bottles/wrappers used by M/s Apple Field International, which finding certainly cannot be made basis to conclude that the contraband allegedly recovered from the premises in question belonged to M/s Apple Field International, especially when it is the own case of the investigating agency that only two bottles manufactured by M/s Apple Field International came to be recovered from the premises in question. 12. Having carefully perused the material on record, this court at this stage, finds no material evidence on record to connect the bail petitioner that the contraband allegedly recovered from the shop/godown allegedly possessed by m/s Apple Field International and as such, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for more than six months. Moreover, nothing remains to be recovered from the bail petitioner. 13. Otherwise also, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution, as such this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial. 14. Moreover, nothing remains to be recovered from the bail petitioner. 13. Otherwise also, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution, as such this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial. 14. Otherwise also, apprehension expressed by the learned Additional Advocate General that in the event of being enlarged on bail, bail petitioner may tamper with the prosecution evidence, can be best met with by imposing stringent conditions upon the bail petitioner. 15. 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 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon''ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon''ble Apex Court has held 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. 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. 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. 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." 16. By now it is well settled that gravity alone cannot be a 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 SCC 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. 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." 17. 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. 18. 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. 18. 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. 19. In view of above, bail petitioner has carved out a case for grant of bail and as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail subject to his furnishing bail bonds in the sum of Rs.10,00,000/- (Rs. Ten Lakh) with one local surety in the like amount, to the satisfaction of the Chief Judicial Magistrate concerned/trial court, besides the 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 surrender passports, if any, held by him. 20. (e) He shall surrender passports, if any, held by him. 20. It is clarified that if the petitioner misuses the 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 the petition alone. The petition stands accordingly disposed of. Copy dasti.