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2019 DIGILAW 204 (HP)

Vinod Kumar v. State Of Himachal Pradesh

2019-02-28

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. (Oral) - Instant bail petition filed under Section 439 CrPC has been preferred by the bail petitioner namely Vinod Kumar, who is in custody since 02.02.2019, for grant of regular bail in FIR No. 09/2019 dated 01.02.2019, under Sections 20, 61 and 85 of the Narcotic Drugs & Psychotropic Substances Act , registered at Police Station, Sunni, District Shimla, Himachal Pradesh. 2. Sequel to order dated 05.02.2019, HC Chaman Lal, has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General states that status report, prepared on the basis of investigation carried out by the investigating agency, stands already filed on 15.02.2019, on which date, matter was listed before the Coordinate Bench. Record perused and returned. 3. On scrutiny of record reveals that on 01.02.2019 at Thalli bridge near Sunni, police patrolling party intercepted the bail petitioner, who was allegedly possessing psychotropic substance. Contraband allegedly being carried out by the petitioner was found to be ''Charas'' which subsequently, on weighment came to be 208 grams. After completion of investigation including codal formalities, police registered FIR detailed hereinabove against the present petitioner at Police Station, Sunni, District Shimla, Himachal Pradesh and since 02.02.2019 bail petitioner is behind the bar. 4. Mr. Chandernarayana Singh, learned Counsel representing the bail petitioner, while referring to record/status report argued that since the investigation in the case is complete and nothing is required to be recovered from the bail petitioner, he deserves to be enlarged on bail. He further contended that bare perusal of the record reveals that no case is made out under Sections 20, 61 and 85 of the Act ibid against the bail petitioner, and as such, he deserves to be enlarged on bail keeping in view the quantity of contraband allegedly recovered from him. Lastly, he contended that the petitioner has large family to support and there is none in the family to take care of his old parents and as such he being first offender deserved to be enlarged on bail. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to completion of investigation contended that nothing is required to be recovered at this stage from the bail petitioner but report of FSL is still awaited. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to completion of investigation contended that nothing is required to be recovered at this stage from the bail petitioner but report of FSL is still awaited. He further contended that person named by the petitioner from whom he allegedly purchased the contraband is still to be arrested and, as such, bail petition be dismissed. He further contended that though quantity recovered from the petitioner is less than commercial but keeping in view the over all impact of the drug menace in the society, petitioner is required to be kept behind the bar. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. Perusal of record suggests that on the date of alleged incident, petitioner was found carrying 208 grams of "Charas" at Thalli bridge near Sunni. Record further reveals that aforesaid recovery came to be effected in the presence of driver of taxi bearing No.HP01M-2445, which at the relevant time was stopped by the patrolling party for checking and as such it cannot be said that no case at all is made out against the present bail petitioner. However, taking note of the fact that 208 grams of Charas which is intermediate quantity, was allegedly recovered from the possession of the petitioner, this Court finds considerable force in the arguments of Mr. Chandernarayana Singh, learned counsel that rigours of section 37 of the Act are not attracted in the present case and, as such, prayer for enlargement of bail can be considered after putting the investigating agency to the notice. In the case at hand, there is nothing available on record from where it can be inferred that bail petitioner in past also had been indulging in illegal purchase of charas/psychotropic substance. As such, he being first offender deserves leniency, especially taking note of the fact that he has family to support. 8. 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 petitioner''s being enlarged on bail, he may flee from justice. Petitioner, who is a local resident of area, shall always remain available for investigation/ trail. There is no material placed on record by investigating agency suggestive of the fact that in the event of petitioner''s being enlarged 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. 9. 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. (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) 10. 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." 11. 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." 12. 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. 13. It has been repeatedly held by Honble 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. 14. Recently, the Honble 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. Honble 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. Honble 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. Honble 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. 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. 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 Re-Inhuman Conditions in 1382 Prisons. 15. 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. 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. 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 `1,00,000/-(Rupees one 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. (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. Copy dasti.