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2021 DIGILAW 168 (HP)

Rajesh Kumar v. State Of Himachal Pradesh

2021-03-22

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Bail petitioner-Rajesh Kumar, has approached this Court by way of instant petition filed under S.438 CrPC, for grant of anticipatory bail in FIR No. 17, dated 8.3.2021. 8.3.2021, under Ss. 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station Chintpurni, District Una, Himachal Pradesh. 2. Respondent-State besides filing status report have also made available complete record. 3. Status report/record reveal that on 5.3.201, at 5.40 pm, police stopped one boy namely Surajmukhi, for checking. Since the boy after having seen the police got perplexed, police after associating independent witness, effected his personal search and allegedly recovered 18.49 grams of charas. Since the above named boy was unable to render any explanation for possessing aforesaid quantity of charas, police after completion of necessary codal formalities, lodged FIR detailed herein above. During investigation, above named boy disclosed to the police that he had purchased aforesaid contraband from the bail petitioner. Aforesaid boy also disclosed to the police that in the past also, on two occasions, he had purchased charas from the bail petitioner and then he used to sell the same to truck drivers passing through Chintpurni road. In the aforesaid background, case under S.29 of the Act ibid came to be registered against the bail petitioner. 4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the joining of investigation by the bail petitioner pursuant to order dated 18.3.2021, contends that keeping in view the gravity of offence alleged to been committed by the petitioner, bail petitioner does not deserve any leniency and as such, prayer made on his behalf may be rejected. Learned Additional Advocate General contends that the record shows that the bail petitioner had been indulging in such activities in the past also, as such, in the event of his being enlarged on bail, there is every likelihood of his indulging in such activities again. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of alleged incident, 18.49 grams of charas came to be recovered from the possession of a juvenile namely Surajmukhi, who otherwise stands enlarged on bail. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of alleged incident, 18.49 grams of charas came to be recovered from the possession of a juvenile namely Surajmukhi, who otherwise stands enlarged on bail. Though the above named person disclosed to the police that he had purchased aforesaid quantity of chars from the bail petitioner but as per own case of the prosecution, nothing was found in the shop and house of the bail petitioner. Police, after having received information from the bail petitioner raided house and shop of the petitioner but did not recover anything. Though the Police made an attempt to carve out a case that in the past also, bail petitioner had been indulging in such activities and on earlier two occasions, he had sold charas to the juvenile namely Surajmukhi, for further sale to the truck drivers operating on the Chintpurni road, but such revelation, if any, made by said juvenile is not sufficient to conclude complicity, if any, of the bail petitioner in the alleged offence, rather, such fact, if any, is required to be established by the investigating agency by leading cogent and convincing evidence on record. 6. Otherwise also, quantity of charas recovered from the conscious possession of the juvenile is less than small, as such, rigours of S.37 of the Act are not attracted in this case hence, prayer made on behalf of the petitioner for grant of bail, deserves to be allowed. Otherwise, this Court was unable to lay its hands to material, if any, available on record, suggestive of the fact that in the past also, petitioner had been indulging in such activities and as such, his prayer for bail deserves to be accepted. 7. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. 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. 8. 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. 9. Hon'Ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation,2012 1 SCC 49 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. 10. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held that the 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. 11. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down various principles to be kept in mind, while deciding petition for bail viz. 11. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 12. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed and order dated 15.3.2021 is made absolute, subject to the bail petitioner furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one local surety in the like amount, to the satisfaction of the investigating officer, 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. 13. 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. 14. 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. 15. The petition stands accordingly disposed of. Copy Dasti.