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2020 DIGILAW 693 (HP)

Kuldeep Singh v. State of Himachal Pradesh

2020-10-07

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Bail petitioner, Kuldeep Chand, who is behind bars since 15.1.2020, has approached this Court, in the instant proceedings filed under S.439 CrPC, for grant of regular bail in respect of FIR No. 116, dated 10.12.2019, under Ss. 15 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station Banjar, District Kullu, Himachal Pradesh. 2. Status report filed in terms of order dated 21.8.2020, reveals that on 9.12.2019, Police after having receive secret information laid Naka near Pahli road and allegedly stopped car bearing registration No. HR-26AU-1919, but before same could be checked, allegedly the occupants of the car having seen the police, fled away from the spot. As per status report, police checked the car in question in the presence of independent witness and allegedly recovered 61.800 kg of poppy straw. After completion of investigation, Police registered FIR, as detailed herein above at Police Station Banjar, District Kullu. Subsequently, on the basis of registration number of car involved in the incident, police apprehended the bail petitioner on 15.1.2020, who disclosed to the police that aforesaid car was sold by him to co-accused, Bittu. As per status report, bail petitioner disclosed that on 9.12.2019, he had gone to Banjar alongwith Bittu, in order to purchase poppy straw for consideration of Rs.50,000/-. On the basis of aforesaid alleged disclosure made by the petitioner, he came to be named in the FIR alongwith other co-accused and since 15.1.2020, he is in jail. 3. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting factum with regard to fiing of Challan in the competent Court of law, states that though 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. Mr. Thakur further contends that since other accused Bittu, who is otherwise brother-in-law of the bail petitioner, is absconding, it may not be in the interest of justice to enlarge the bail petitioner at this stage, who otherwise, in the event of being enlarged on bail, may again indulge in such activities. 4. Mr. Thakur further contends that since other accused Bittu, who is otherwise brother-in-law of the bail petitioner, is absconding, it may not be in the interest of justice to enlarge the bail petitioner at this stage, who otherwise, in the event of being enlarged on bail, may again indulge in such activities. 4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that as per own case of the investigating agency, persons occupying the car bearing registration No. HR-26AU-1919, had fled away from the spot and none had identified them. It is only on the basis of registration papers of the car involved in the incident, that the bail petitioner has been roped into the case at hand. Bail petitioner, though disclosed to the Police that vehicle involved in the alleged incident was sold by him to Bittu but status report nowhere reveals that effort, if any, ever came to be made by the investigating agency to verify aforesaid claim of the petitioner. Though, status report reveals that the bail petitioner while disclosing factum with regard to sale of vehicle by him in favour of co-accused Bittu, admitted that he had gone to Banjar with the co-accused and had purchased poppy straw for a consideration of Rs.50,000/-, but said admission, if any, made by him before Polie cannot be made basis to conclude complicity, if any, of the bail petitioner in the alleged incident, rather, same is required to be proved in accordance with law by way of cogent and convincing evidence. Since petitioner never came to be apprehended on the spot by the Police alongwith contraband, it would be too premature to conclude his involvement in the case, that too, on the basis of the fact that the vehicle involved in the incident is owned by him, especially when bail petitioner has taken a stand that such vehicle has been sold by him to coaccused Bittu, who is otherwise absconding. 5. 5. Though, in the case at hand, contraband allegedly recovered from the car involved in the incident, is of commercial quantity as such rigours of S.37 of the Act are attracted but, careful perusal of S.37 nowhere suggests that there is a complete bar for the Court to grant bail in cases where contraband is more than the commercial quantity, rather, in such case, notice is required to be issued to the Public Prosecutor before considering prayer for bail, if any, where the Public Prosecutor opposes the application but the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail, it can proceed to grant bail. In the case at hand, for the reasons stated above, prayer made on behalf of the bail petitioner for grant of bail deserves to be allowed especially when guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution. Contraband involved in the case at hand, never came to be recovered from exclusive and conscious possession of the bail petitioner, rather, same was recovered from the car bearing registration No. HR26AU-1919, occupants whereof had allegedly fled away from the spot and no one identified them 6. Hon'ble Apex Court as well as this Court have held in a catena of judgments that a person is deemed to be innocent, till the time his/her guilt is proved in accordance with law, as such, there is no justification to allow bail petitioner incarcerate in jail for an indefinite period during trial ,especially when he has already suffered for more than nine months. Though Challan in the case at hand stands filed but trial is yet to commence and there is every likelihood of the same being delayed on account of situations prevailing in the wake of Covid-19 pandemic and as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial. Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions. Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions. Besides this, from the status report, it is revealed that there is no criminal history of the bail petitioner, as such, he is entitled to be enlarged on bail. 7. 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." 8. 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." 8. In Sanjay Chandra versus Central Bureau of Investigation,2012 1 SCC 49, Hon'ble Apex Court has held 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. 9. 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. 10. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc. 11. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. 11. 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 Magistrate available at the station, 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. 12. 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. 13. 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.