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2020 DIGILAW 261 (HP)

Rahul Verma v. State Of Himachal Pradesh

2020-04-27

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely Rahul Verma, who is behind the bars since 11.3.2020, has approached this Court by way of instant petition filed under S.439 CrPC, for grant of regular bail in FIR No.59 of 2020 dated 11.3.2020, registered at Police Station Sadar, District Solan, HP under Ss. 21 and 22 of Narcotic Drugs & Psychotropic Substances Act. 2. Sequel to order dated 22.4.2020, respondent-State has filed status report through email, which is taken on record. 3. Perusal of the status report made available to this Court reveals that on 11.3.2020, police after having received a secret information, intercepted a car bearing registration No. HP-09C-6270 near Victory Tunnel, Shimla and allegedly recovered 73.21 grams of heroin. At the time of alleged recovery five persons, namely Pradeep Kumar, Akshay Chauhan, Sandeep Kumar, Dinesh Kumar and the present bail petitioner-Rahul Verma, were sitting inside the car. Since the police recovered a half burnt ten rupee currency note from the dashboard of the vehicle in question, they deemed it necessary to conduct personal search of the occupants of the car. Police, after having received consent of all the occupants of the vehicle, including bail petitioner, conducted their personal search. During search conducted before the Executive Magistrate, Police recovered heroin weighing 73.21 grams from the underwear of co-accused Dinesh Kumar. As per status report, none of the accused, save and except Dinesh Kumar, was found to be carrying any contraband on their persons. Police also recovered currency amounting to Rs. 35,300/- from the pocket of the co-accused, Dinesh Kumar, which he had allegedly collected from other co-accused for the purpose of the heroin/Chitta. Though the above named accused, Dinesh Kumar disclosed to the police that he had purchased heroin/Chitta at Shoghi from a person namely Gaurav Bakshi, resident of Haryana, but such person could not be apprehended. Investigating agency is in the process of obtaining call detail report of said person so as to ascertain his complicity in the offence involved in the present case. 4. Record further reveals that three cases under NDPS Act stand already registered against co-accused Dinesh Kumar, from whose exclusive possession 73.21 gram of heroin /Chitta came to be recovered in the instant case, whereas, there is nothing to suggest in the status report that the other co-accused including present bail petitioner had been indulging in illegal trade of narcotics in the past also. Otherwise also, specific case of the investigating agency is that the co-accused Dinesh Kumar is the main accused and he had been indulging in illegal trade of narcotics in the past also. 5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while appearing for the respondent-State through video conferencing contends that though the investigation in the case is complete and nothing remains to be recovered from the bail petitioner but keeping in view 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. Learned Additional Advocate General further contends that the bail petitioner was one of the occupants of the car, from which a huge quantity of contraband came to be recovered and as such, it cannot be said that he has been falsely implicated. Lastly, Mr. Bhatnagar, learned Additional Advocate General contends that as per own statements of the co-accused including present bail petitioner, all of them had collected money and thereafter handed it to Dinesh Kumar, for purchase of Chitta, as such, possibility of petitioner's involvement in the offence punishable under Ss. 21 and 29 of the Act ibid, cannot be ruled out. Learned Additional Advocate General, further contends that in the event of the petitioner being enlarged on bail, there is every possibility of his again indulging in the illegal trade of narcotics, as such, it is would not be in the interest of justice to enlarge him on bail. 6. Having heard learned counsel for the parties through video conferencing, and perused the status made available to this court, this court finds that on the date of alleged incident, police after having received secret information, recovered 73.21 gram heroin from the underwear of co-accused Dinesh Kumar i.e. one of the occupants of the car. No doubt, at the time of alleged recovery of contraband from person of Dinesh Kumar, four other accused including present bail petitioner were traveling in the same car, which was intercepted by the police but it is also not in dispute that no contraband ever came to be recovered from the person of the present bail petitioner. No doubt, at the time of alleged recovery of contraband from person of Dinesh Kumar, four other accused including present bail petitioner were traveling in the same car, which was intercepted by the police but it is also not in dispute that no contraband ever came to be recovered from the person of the present bail petitioner. It is also not in dispute that recovery of contraband never came to be effected from the vehicle in which all of the accused were allegedly traveling at the time of alleged recovery, rather it was recovered from the person of co-accused Dinesh Kumar. 7. Having taken note of the fact that the contraband was recovered from the underwear of co-accused Dinesh Kumar, this court is in agreement with learned counsel for the petitioner that at this stage, there is nothing on record suggestive of the fact that the present bail petitioner was aware of the fact that the co-accused Dinesh Kumar was carrying any contraband on his person. Though as per police case, currency allegedly recovered from the pocket of co-accused Dinesh Kumar was given to him by other co-accused for purchase of heroin, but such fact, if any, is yet to be established on record by the investigating agency. Though status report reveals that three cases under NDPS Act stand already registered against co-accused Dinesh Kumar, but there is no material worth the name available on record suggestive of the fact that the present bail petitioner had been indulging in illegal trade of narcotics in the past/prior to lodging of instant case. Learned Additional Advocate General fairly admits that at present no case under NDPS Act stands registered or is pending against the present bail petitioner and as such, his presence in the vehicle in question alone is not sufficient to conclude his complicity, if any, in the commission of the offence in the present case. 8. No doubt, offence alleged to have been committed by bail petitioner alongwith other co-accused is grievous and has a serious impact on the society but, as has been taken note herein above, complicity if any of the bail petitioner in the case at hand is yet to be established and as such, it may not be fair to curtail his freedom for an indefinite period during trial, especially when nothing remains to be recovered from him. Main accused-Dinesh Kumar, from whose person, contraband came to be recovered, is already behind the bars. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities can be best met by putting bail petitioner to stringent conditions. 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 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. 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. 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. 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. 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. 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. 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 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. 12. 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 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. 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." 13. 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. 14. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.5,00,000/- with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned trial Court concerned, 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 passport, if any, held by him. 15. (e) He shall surrender passport, if any, held by him. 15. 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. It is further clarified that in case, any other case is registered against the bail petitioner under Narcotic Drugs & Psychotropic Substances Act, Police shall immediately approach this Court for cancellation of present bail. 16. 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.