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2020 DIGILAW 906 (HP)

Vikas v. State of Himachal Pradesh

2020-12-23

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - THROUGH VIDEO-CONFERENCING Bail petitioner Vikas, who is behind bars since, 22.11.2017, has approached this Court in the instant proceedings filed under Section 439 of Cr.P.C, for grant of regular bail in FIR NO. 275, dated 22.11.217, under Ss. 20, 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station Kullu, District Kullu, Himachal Pradesh. 2. Respondent-State has filed status report in terms of order dated 09.12.2020, perusal whereof reveals that on 22.11.2017, police party present at Naka laid at Suma Ropa, stopped a car bearing registration No. PB-13AP-0721, being driven by the person namely Sumit Jindal, for checking. Since above named driver as well as other occupants of the car got perplexed on seeing the police, police deemed it proper to carry out personal search of the occupants of the car as well as of the car in question. Person namely Puran Chand, who had reached the naka driving his car, was associated as an independent witness by the police before carrying out search of the occupants of the car as well as driver of the car and allegedly, police recovered 3.25 kgs of charas from the front seat of the car on which co-accused Raj Kamal was allegedly sitting. Since occupants of the car were unable to render proper explanation with regard to possession of the aforesaid commercial quantity of the contraband, police, after completion of necessary codal formalities registered FIR detailed herein above against all the accused and since then bail petitioner is behind the bars, whereas, co-accused Raj Kamal though was released on medical grounds but now he is stated to have expired. Vide order dated 12.11.2020, passed in Cr.MP(M) No.1772 of 2020 another co-accused, who was driver of the vehicle in question, namely, Sumit Jindal stands enlarged on bail. 3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of Challan in the competent Court of law contends that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and prayer having been made on his behalf for grant of bail deserves outright rejection. Mr. Mr. Bhatnagar, while inviting attention of this Court to the status report contends that since there is overwhelming evidence available on record suggestive of the fact that on the date of alleged incident, commercial quantity of charas came to be recovered from the car, being driven by co-accused Sumit Jindal, in which the bail petitioner was one of the occupant. Mr. Bhatnagar further contends that otherwise also, rigours of S.37 of the Act are attracted in the present case as such, prayer for grant of bail deserves outright rejection. While admitting the factum with regard to recording of statement of recovery witnesses in the Trial Court, Mr. Bhatnagar contends that since only six prosecution witnesses remain to be examined, it would not be in the interest of justice to enlarge the bail petitioner on bail, at this stage, who in the event of his being enlarged on bail, may not only flee from justice but may also dissuade remaining prosecution witnesses from deposing against him. 4. Mr. Balram Sharma, learned Counsel representing the petitioner, while inviting attention of this Court to the statement made by independent witness namely Puran Chand, PW-8, (available at page-25 of the paper-book, Annexure A-8) contends that since sole independent witness allegedly associated by the police during recovery of contraband, has turned hostile and has nowhere supported the case of prosecution, petitioner, who is behind the bars for last three years for no fault of him, deserves to be enlarged on bail. While placing reliance upon judgments passed by this Court in Cr. MP(M) No. 1772 of 2020, titled Sumit Jindal vs. State of Himachal Pradesh (decided on 12.11.2020), CrMP(M) No. 1152 of 2020 titled Joginder Singh vs. State of Himachal Pradesh (decided on 5.8.2020) and CrMP(M) No. 1505 of 2020, titled Niranjan vs. State of Himachal Pradesh (decided on 27.10.2020, Mr. Sharma contends that in similar facts and circumstances, this court has already granted bail to the persons, who allegedly were found in possession of commercial quantities of contraband. Lastly Mr. Sharma made available copy of order dated 12.10.2020 passed by Hon'ble Apex Court in Cr. Appeal No. 668 of 2020, titled Amit Singh Moni vs. State of Himachal Pradesh, to demonstrate that since there is every likelihood of delay in conclusion of trial on account of Covid-19 pandemic, petitioner, who has already suffered for more than 3 years, deserves to be enlarged on bail. Appeal No. 668 of 2020, titled Amit Singh Moni vs. State of Himachal Pradesh, to demonstrate that since there is every likelihood of delay in conclusion of trial on account of Covid-19 pandemic, petitioner, who has already suffered for more than 3 years, deserves to be enlarged on bail. 5. Having heard learned counsel for the parties and perused the material available on record, this court finds that police party while effecting personal search as well as search of car bearing registration No. PB-13AP-0721, being driven by co-accused Sumit Jindal, associated independent witness namely Puran Chand. Aforesaid witness, while deposing before learned Court below, has nowhere supported the prosecution case. Statement of aforesaid prosecution witness, Puran Chand, PW-8, (available at page 25 of the paper-book), if read in its entirety, compels this Court to agree with the contention of Mr. Balram Sharma, learned counsel representing the bail petitioner that no recovery was effected in the presence of Puran Chand. Aforesaid witness, in his examination-in-chief, deposed that in the year 2017, he had gone to Kasol in his vehicle bearing registration No. HP-33T-9491 and when he had reached Dhunkhan, his vehicle was stopped by the police. He stated in his examination-in-chief that the police obtained his signatures at PP Jari and thereafter nothing had happened. Cross-examination conducted upon this witness by public prosecutor, if perused in its entirety, nowhere suggests that prosecution was able to extract something contrary to what this witness deposed in examination-in-chief. 6. Learned Additional Advocate General, while admitting factum with regard to recording of statement of PW-8, as has been placed on record, contends that since this witness has categorically admitted his signatures on the recovery memo Ext. P1, no benefit can be drawn from his statement by the petitioner-accused, who admittedly was one of the occupant of the car, from which commercial quantity of contraband was recovered, however, having carefully perused the statement of PW-8, this Court finds no force in the aforesaid submission of Learned Additional Advocate General, especially when independent witness has categorically stated that police obtained his signatures at PP Jari. Besides above, this witness in his cross-examination conducted on behalf of the bail petitioner, categorically admitted that he remained witness in 5-6 cases of Narcotic Drugs & Psychotropic Substances Act and police party in the case is already known to him. Besides above, this witness in his cross-examination conducted on behalf of the bail petitioner, categorically admitted that he remained witness in 5-6 cases of Narcotic Drugs & Psychotropic Substances Act and police party in the case is already known to him. This witness admitted in his cross-examination that the police party called him to PP Jari and obtained signatures there. As per status report, police associated only one independent witness at the time of alleged recovery but, as has been taken note herein above, independent witness has turned hostile. True it is that some prosecution witnesses are yet to be examined, but since statements of all the material prosecution witnesses stand record, no prejudice, if, any, would be caused to the prosecution in case bail petitioner, who is behind the bars for 3 years, is ordered to be enlarged on bail at this stage. All the remaining prosecution witnesses are official witnesses, who otherwise being police officials, cannot be dissuaded by the bail petitioner from deposing truth in the court of law. Moreover, co-accused, i.e. driver and owner of the vehicle in question already stands enlarged on bail vide judgment dated 12.11.2020, passed in Cr.MP(M) No. 1772 of 2020 and as such, there appears to be no justification to keep the bail petitioner behind the bars for indefinite period during trial. 7. Though, in the status report, it has been stated that next date for recording the statements of prosecution witnesses has been fixed for 15.01.2021, but there is every likelihood of delay in conclusion of trial on account of Covid-19 pandemic, as such, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial. 8. 8. No doubt, contraband allegedly recovered from the bail petitioner is of commercial quantity, as such, rigours of S.37 of the Act are attracted, but perusal of S. 37 of the Act, if read in its entirety, nowhere suggests that bail cannot be granted in the cases, where commercial quantity is involved, rather in such like cases, court before considering prayer, if any, for grant of bail, is under obligation to offer opportunity of hearing to the public prosecutor and, in case, court having perused record, is satisfied that there are reasonable grounds to believe that accused is not guilty of the offence, and is not likely to commit offence while on bail, can proceed to grant bail even in cases where commercial quantity is involved. Since recovery of contraband has become doubtful in the case at hand, in view of statement of the independent witness, there appears to be no justification to curtail freedom of the bail petitioner indefinitely during trial, especially when he has already suffered for more than three years. 9. Otherwise also, this Court cannot lose sight of the fact that bail petitioner is behind the bars for the last three years and there is every likelihood of further delay in conclusion of trial on account of Covid-19 pandemic. Though this Court on administrative side has already issued instructions to subordinate courts to resume normal working but still evidence is being recorded in limited number of cases to avoid rush in the courts. Hon'ble Apex Court having taken note of the possibility of delay in conclusion of trial on account of Covid-19 pandemic, has also ordered release of person accused of possessing commercial quantity of charas, in Cr. Appeal No. 668 of 2020, titled Amit Singh Moni vs. State of Himachal Pradesh, observing therein as under: "... it is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness was examined in February, 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody. Considering the facts and circumstances on record, in our view, the appellant is entitled to the benefit under Section 439 of the Code. It is also accepted that the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody. Considering the facts and circumstances on record, in our view, the appellant is entitled to the benefit under Section 439 of the Code. We order accordingly." 10. Guilt, if any, of the bail petitioner is yet to be determined in the totality of evidence collected on record by prosecution and as such, it would not be in the interest of justice to let him incarcerate in jail during trial. Though there is nothing in the status report, suggestive of the fact that bail petitioner had been indulging in such activities in the past and there is possibility of his indulging in this trade again in the event of being enlarged on bail but otherwise, apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions. 11. Needless to say that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under article 21 of Constitution of India. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731 , relevant para whereof has been reproduced herein below:- "11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. v. Union of India, (1996) 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 )." 12. 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." 13. 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." 14. 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. 15. 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." 16. 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. 17. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing fresh bail bonds in the sum of Rs.5,00,000/- with two local sureties in the like amount, to the satisfaction of the Trial Court below, 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. 18. (e) He shall surrender passport, if any, held by him. 18. 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. 19. 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. 20. The petition stands accordingly disposed of. Copy dasti.