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Himachal Pradesh High Court · body

2020 DIGILAW 927 (HP)

Sanjay Kumar v. State of Himachal Pradesh

2020-12-30

SANDEEP SHARMA

body2020
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely, Sanjay Kumar, who is behind the bars since 11.1.2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.10/2018, dated 11.01.2018, under Sections 20 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'Act), registered at police Station, Joginder Nagar, District Mandi, Himachal Pradesh. 2. Close scrutiny of status report filed in terms of order dated 23.12.2020 and record made available to this Court by the respondent-State, reveal that on 11.1.2018, police party during traffic checking stopped a truck bearing registration No. HP-33-C-4122 being driven by co-accused Rangila Ram. Since above named driver as well as present bail petitioner Sanjay Kumar, who was one of the occupant of aforesaid truck got perplexed after seeing the police, police allegedly after having associated two independent witnesses namely, Rajinder Kumar and Pradeep Kumar, conducted search of accused named hereinabove as well as of their vehicle and allegedly recovered 4 Kg.500 grams charas from one bag kept behind the driver seat. Since, no plausible explanation came to be rendered on record by the driver of the truck as well as present bail petitioner qua possession of aforesaid commercial quantity of contraband, police lodged FIR, as detailed hereinabove, against the bail petitioner as well as other co-accused Rangila Ram and since then they are behind the bars. Challan stands filed in the competent Court of law and till today six prosecution witnesses out of total 16 stand examined, whereas statements of remaining 10 prosecution witnesses are yet to be recorded. Petitioner herein has approached this Court for grant of regular bail on the basis of the statements made by two independent witnesses associated by the police at the time of effecting recovery from the truck in question. Since both the recovery witnesses have totally denied the case of the prosecution and have turned hostile, petitioner has prayed for grant of bail pending trial. 3. Mr. Since both the recovery witnesses have totally denied the case of the prosecution and have turned hostile, petitioner has prayed for grant of bail pending trial. 3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, who vide order dated 23.12.2020 was specifically directed to verify the correctness and genuineness of copies of statements of prosecution witnesses placed on record, while fairly acknowledging the factum with regard to statements made by the prosecution witnesses, especially two recovery witnesses namely, Rajinder Kumar and Pradeep Kumar, contends that since some of the material prosecution witnesses are yet to be examined, it would be too premature to conclude that bail petitioner has been falsely implicated. Learned Additional Advocate General contends that though challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail may be rejected outrightly. Learned Additional Advocate General submits that in the event of bail petitioner being enlarged on bail, he may not only flee from justice but may also again indulge in such activities and as such, prayer made on his behalf for grant of bail may be rejected. 4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that allegedly on the date of alleged incident police party on traffic duty recovered 4kg.500 grams charas from the back seat of driver of the truck in question in presence of two independent witnesses namely, Rajinder Kumar and Pradeep Kumar. Both the recovery witnesses while deposing before the trial Court as PW-1and PW-2 have resiled from their statements, if any, given to the police at the time of alleged recovery and as such, were declared hostile. Crossexamination conducted by the public prosecutor upon these above named recovery witnesses clearly reveals that prosecution was unable to extract something contrary what these witnesses stated in their examination-in-chief. Crossexamination conducted on these witnesses, if read in its entirety, clearly reveals that though police had intercepted one truck bearing registration No.HP-33-C-4122 on the highway, but police had not asked above named witnesses to be with there for the purpose of conducting search of the truck. Crossexamination conducted on these witnesses, if read in its entirety, clearly reveals that though police had intercepted one truck bearing registration No.HP-33-C-4122 on the highway, but police had not asked above named witnesses to be with there for the purpose of conducting search of the truck. Both the witnesses have categorically denied that police conducted search of the truck as well as driver and other person sitting in the truck i.e. present bail petitioner in their presence. Both the witnesses have denied that during checking of the truck one carry bag containing 4kg.500 grams charas was recovered and police after having drawn sample had again kept the charas in polythene bag/carry bag and then sealed them with seal impression "JNR H" at six places. Though, recovery witnesses admitted their signatures on the memo Ex.PW1/A, but self stated that police had asked them to sign casually. Both the recovery witnesses also denied that the truck bearing registration No. HP-33-C-4122 was taken into custody vide memo Ex.PW1/A. Above named recovery witnesses in their cross-examination conducted by learned counsel for the accused stated that police met them at Chauntra market and took them to police Station, Chauntra and obtained their signatures on some papers as well as already prepared parcels. 5. Apart from aforesaid two independent witnesses associated by the police at the time of effecting recovery, statements of other four prosecution witnesses stand recorded. As of today, only six witnesses out of total 16 witnesses stand examined, however list of witnesses annexed with the challan filed under Section 173 Cr.P.C, clearly reveals that all the material prosecution witnesses stand examined and remaining prosecution witnesses are the police officials and as such, there is no force in the submissions of learned Additional Advocate General that in the event of petitioner being enlarged on bail, he may dissuade the remaining prosecution witnesses from deposing true facts to the Court. 6. As has been noticed hereinabove, learned Additional Advocate General has fairly admitted the factum with regard to statements made by two recovery witnesses, namely Rajinder Kumar (PW-1) and Pradeep Kumar (PW-2) in the trial Court. Besides above, statement of another material prosecution witness namely, Kamal Kishore (PW-3) i.e. owner of the truck involved in the accident if perused further demolishes the case of the prosecution. Besides above, statement of another material prosecution witness namely, Kamal Kishore (PW-3) i.e. owner of the truck involved in the accident if perused further demolishes the case of the prosecution. This witness in his examination-in-chief deposed that co-accused Rangila Ram was driver on his truck bearing registration No. HP-33-C-4122 till 11.1.2018, whereafter he was arrested by the police. Most importantly, this witness deposed that on 11.1.2018, he had sent Rangila Ram driver to bring the crusher from Palampur. This witness also stated that he had not kept any conductor in the truck. Aforesaid version, if perused juxtaposing story of the prosecution as reflected in the final report filed under Section 173 Cr.P.C., renders the story put forth by the prosecution to be highly unbelievable. 7. It is quite apparent from the statement of PW-3, Kamal Kishore that on the date of alleged incident co-accused Rangila Ram was doing work of driver, whereas it has come in the investigation that present bail petitioner was running his shop of barber. Moreover, there is nothing on record to infer that present bail petitioner was working as conductor in the truck. Aforesaid fact gains significance because otherwise also, commercial quantity of contraband came to be recovered from the back seat of driver of the vehicle in question and as such, it can be presumed and inferred that bail petitioner being one of the co-passenger had no knowledge about the contraband allegedly kept in truck by co-accused Rangila Ram. In crossexamination, PW-3 categorically stated that he has maintained attendance register of the driver, which also contains the account of his salary, but prosecution have not been able to extract from this witness that on the date of alleged incident co-accused Rangila Ram unauthorizedly took the vehicle to Pathankot, rather this witness categorically stated that on the date of alleged incident, he had sent coaccused Rangila Ram to Palampur for bringing crusher. 8. This Court finds from the record that prosecution with a view to prove recovery, associated two independent witnesses, as have been named hereinabove, but since both the independent witnesses have not supported the case of the prosecution, story put forth by the prosecution becomes highly doubtful. 9. 8. This Court finds from the record that prosecution with a view to prove recovery, associated two independent witnesses, as have been named hereinabove, but since both the independent witnesses have not supported the case of the prosecution, story put forth by the prosecution becomes highly doubtful. 9. No doubt, in the case at hand, commercial quantity of charas has been recovered and as such, rigor of section 37 are attracted, but since recovery of commercial quantity of charas has become doubtful on account of the depositions made by the two independent witnesses, it is too difficult at this stage to conclude complicity, if any, of bail petitioner in the alleged crime. Otherwise also, bare perusal of Section 37 of the Act, clearly suggests that there is no complete bar/prohibition to grant bail to the accused having found in possession of commercial quantity of contraband, rather court having afforded due opportunity of being heard to the public prosecutor can proceed to grant bail even in the cases of commercial quantity, if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the act and secondly that he is not likely to commit any offence while on bail. Bail petitioner is behind the bars for more than three years and during this period despite there being specific directions issued by this Court, learned court below has not been able to conclude the trial, rather record clearly reveals that 10 prosecution witnesses yet remain to be examined. .Though, case has been repeatedly listed for recording the statements of remaining prosecution witnesses, but having taken note of the fact that evidence in the cases pending before the trial Courts is being recorded in limited numbers on account of Covid-19, this Court has reason to believe and presume that considerable time would be consumed in the conclusion of the trial and as such in the peculiar facts and circumstances, it would not be fair to curtail the freedom of the petitioner during the trial for indefinite period, especially when statements of all the material prosecution witnesses stand already recorded coupled with the fact that recovery witnesses have not supported the case of the prosecution. Though, learned Courts below on the instructions issued by this Court on administrative side have resumed normal work, but still evidence is being recorded in limited numbers and as such, it would be unfair and unjust in case the petitioner is allowed to incarcerate in jail during trial for indefinite period. 10. 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. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 )." 11. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Since guilt, if any, of the bail petitioner is yet to be proved, in accordance with law by the prosecution by leading cogent and convincing evidence, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during the trial, especially when nothing remains to be recovered from him. Since guilt, if any, of the bail petitioner is yet to be proved, in accordance with law by the prosecution by leading cogent and convincing evidence, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during the trial, especially when nothing remains to be recovered from him. 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. 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 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. Hon'ble 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. Hon'ble 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. 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. 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. 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation,2012 1 SCC 49; 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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. 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. 16. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs.2.00 Lakh with two local sureties in the like amount each to the satisfaction of the learned trial Court 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 surrender passport, if any, held by him. 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 application alone. 19. The petition stands accordingly disposed of.