Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 110 (HP)

Kanta v. Narcotics Control Bureau

2021-03-05

CHANDER BHUSAN BAROWALIA

body2021
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The instant is a third successive bail application maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking her release in Crime No. 26 of 2019, dated 28.05.2019, under Sections 8, 20 and 29 of the ND&PS Act, registered by Narcotic Control Bureau, Sub-Zone, Mandi, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. She is permanent resident District Kullu, H.P., thus neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping her behind the bars for an unlimited period, so she be released on bail. 3. Reply to the petition stands filed. Tersely the facts of the case are that on 28.05.2019, NCB, Chandigarh, was secretively informed that one Jagdish Kumar (co-accused) is involved in drug trafficking and huge quantity of charas has been delivered by him to one Munish Kumar (co-accused). Acting upon the information, NCB, Chandigarh, constituted a team for taking action as per the law. On 28.05.2019, around 08:30 p.m., the above team reached Sundernagar and intercepted car, having registration No. HP32A-4988, which was being driven by co-accused Munish Kumar. Co-accused Munish Kumar disclosed that he was waiting for his friend, so he was detained. Subsequently, vehicle, having registration No. HP32A-4776, was stopped and its driver disclosed his name as Jagdish Kumar (coaccused). Thereafter, Investigating Officer of the NCB Team disclosed his identity and co-accused divulged that a consignment of charas is in his car, which he was to deliver to co-accused Munish Kumar. The NCB team associated two independent witnesses and in their presence, recovered 33 packets from vehicle No. HP32A-4776, each packet was wrapped with white transparent polythene packet and inside the packets there was some dark brown substance in round shape, which was charas. On weighment, the total contraband was 19.350 Kgs. Thereafter, the NCB team completed all the codal formalities. The coaccused persons were arrested and during the course of interrogation they divulged that co-accused Jagdish received the contraband from one Raj at the instance of one Kanta (petitioner herein) and they paid her Rs.7,00,000/- (rupees seven lac). On weighment, the total contraband was 19.350 Kgs. Thereafter, the NCB team completed all the codal formalities. The coaccused persons were arrested and during the course of interrogation they divulged that co-accused Jagdish received the contraband from one Raj at the instance of one Kanta (petitioner herein) and they paid her Rs.7,00,000/- (rupees seven lac). In sequel, on 29.05.2019, the NCB team alongwith independent witnesses reached the house of the petitioner and the petitioner disclosed her identity as Kanta (petitioner). During the search, Rs. 7,78,000/- were recovered from the petitioner and the said money was kept in a transparent polythene packet. A passport in the name of one Rajkumar was also recovered and said Rajkumar was arrested by NCB, Chandigarh, in connection with NCB Crime No. 49 of 2018, and was in judicial custody at Chandigarh. Thereafter, the NCB team completed all the codal formalities. During the course of investigation, the petitioner divulged that she obtained the contraband from one Raj of Rashol and revealed his mobile number. However, upon inquiry no such person was found in the area of Rashol. As per the NCB, accused persons Jagdish Kumar, Munish Kumar and Kanta (petitioner herein) were involved in drug trafficking. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found actively involved in transporting 19.390 kgs of charas, which is a commercial quantity. In case the petitioner, at this stage, is enlarged on bail, there is every possibility that she may flee from justice or tamper with the prosecution witnesses, so the bail application may be dismissed. 4. I have heard the learned Counsel for the petitioner, learned Senior Counsel for the NCB and gone through the records, carefully. 5. Mr. Angel Sharma, learned Counsel for the petitioner, has argued that the petitioner is innocent and has been falsely implicated in the instant case. He has further argued that the petitioner was not at all involved in the case and she kept the money, which was allegedly recovered by the NCB, for purchasing property. 5. Mr. Angel Sharma, learned Counsel for the petitioner, has argued that the petitioner is innocent and has been falsely implicated in the instant case. He has further argued that the petitioner was not at all involved in the case and she kept the money, which was allegedly recovered by the NCB, for purchasing property. The petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as she is permanent resident of District Kullu, H.P. He has argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when investigation is complete, the petitioner is a lady and has young daughters at home. He has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when investigation is complete, her custody is not at all required, so the bail application may be allowed and the petitioner be enlarged on bail. Conversely, the learned Senior Counsel for the NCB has argued that the petitioner was found involved in illegally transporting 19.350 kgs of charas, which is a commercial quantity. He has further argued that house of the petitioner was raided upon the disclosure statement made by one of the co-accused and a sum of Rs. 7,78,000/- was recovered from the petitioner. He has also referred to the cases pending against the petitioner. He has argued that the petitioner is the main kingpin in the commission of the offence and thus cannot be enlarged on bail. The petitioner is time and again filing the petitions seeking her bail and this is third successive attempt, but the petitioner could not establish changed circumstances, so the instant petition may be dismissed, as there is no change in the circumstance and in case the petitioner is enlarged on bail, at this stage, she may flee from justice, or tamper with the prosecution evidence. 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is behind the bars for the last more than one and half years and she cannot be kept behind the bars for an unlimited period, especially when she is a lady, investigation is complete and now nothing remains to be recovered at her instance. He has further argued that delay in registering the crime against the petitioner is changed circumstances. He has further argued that delay in registering the crime against the petitioner is changed circumstances. He has argued that considering the overall facts and circumstances of the case the bail petitioner may be allowed and the petitioner be enlarged on bail. In order to support his arguments, the learned counsel for the petitioner has drawn attention of this Court to the following judicial pronouncements: 1. Sanjay Chandra vs. CBI, 2012(1) SCC 40 ; & 2. Mohan Raikwar vs. State of M.P., 2000(2) HLR 456. 7. At the very outset, it would be profitable to examine the above cited judgments. The Hon’ble Apex Court in Sanjay Chandra’s case (supra) held as under: “14. In bail applications, generally, it has been laid down from the earliest times that 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. From the earliest times, it was appreciated that 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 trail to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, 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 a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.” 8. In Mohan Raikwar’s case (supra) the Hon’ble High Court of Madhya Pradesh as held as under: “7. The learned Judge hearing the second petition does not lose his jurisdiction to grant bail. The changed circumstances do not mean some extra-ordinary changes. Each day’s confinement, each day’s delay and each day’s detention of the petitioner should be taken as a relevant consideration while considering the second application. I fail to understand that why without applying the mind to the facts of the case the Magistrate and the Additional Sessions Judge rejected the bail application. When a bail application is under consideration the Judge deciding the application is not only required to red the allegations made against the accused, but is also required to see whether prima facie the offences with which the accused is charged are made out or not. At one side a judge rejects the application without reading the facts observing that it was likely to prejudice the case of the accused or the prosecution and while considering the second application he rejects the same observing that the first application was rejected on merits.” Now, after incisively perusing the above cited judgments, this Court finds that the above judgments are of no help to the petitioner, as the instant is a case of recovery of 19.350 kgs of charas and the Rs. 7,78,000/- was recovered from the petitioner. It has come in the investigation that the petitioner is the main kingpin and she received money in lieu of the contraband and previously also the petitioner was found actively involved in selling contraband and cases are pending against her, thus the present case does not fall within the category of cases as held in the judgments above. The ratio of the above judgments is not applicable to the present case. The ratio of the above judgments is not applicable to the present case. Even otherwise, there can never be a straight-jacketed formula or fixed pre-drawn line of law for granting or refusing bail. Each and every petition, seeking bail, has to be seen with the magnifying lenses of facts and circumstances of that particular case. The vital aspects in granting or refusing bail can be the possibility of accused’s fleeing, in case the bail is granted, the possibility of the accused’s tampering with the prosecution evidence, the gravity and seriousness of the offence, the manner in which the same is alleged to have been committed etc. etc. and there may be innumerable other aspects/reasons for granting or refusing bail. Thus, no straight-lined formula can be adhered to in granting or refusing bail and each case has to be tested with the valuable aid of its own facts and circumstances, vis-à-vis, some other important aspects and law. 9. At this stage, considering the quantity of the recovered contraband, i.e. 19.350 kgs, which is commercial quantity, the fact that there is no change in the circumstances, previously also the petitioner was found involved in drug trafficking and cases have been registered against her, considering the active involvement of the petitioner in the alleged offence, the fact that a sum of Rs. 7,78,000/- was recovered from her possession, the fact that it was on the basis of the disclosure statement made by accused Jagdish Kumar, house of the petitioner was raided, considering the facts that accused Jagdish Kumar also stated that he procured the charas from the petitioner after paying her Rs. 7,00,000/- and Rs. 7,78,000/- was recovered from the possession of the petitioner and also considering the facts that in case the petitioner is enlarged on bail, she may tamper with the prosecution evidence or flee from the justice and considering all other vital aspects, which emerge, and without discussing the same elaborately at this stage, this Court is of the opinion that the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in her favour. 10. In view of the foregoing discussions, the petition, which sans merits, deserves dismissal and is accordingly dismissed. 11. 10. In view of the foregoing discussions, the petition, which sans merits, deserves dismissal and is accordingly dismissed. 11. Needless to say that the observations made hereinabove are only confined for the adjudication of the instant petition and shall have no bearing, whatsoever, on the merits of the main case, which shall be adjudicated on its own.