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2021 DIGILAW 177 (HP)

Bhavan Kumar v. State Of Himachal Pradesh

2021-03-24

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - By way of present petition filed under S.439 CrPC, prayer has been made on behalf of the bail petitioner namely Bhavan Kumar, who is behind the bars since 16.3.2019, for grant of regular bail in FIR No. 11, dated 17.1.2019, registered at Police Station Jogindernagar, Mandi, Himachal Pradesh under Ss. 20, 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter, 'Act'). 2. Pursuant to previous orders, HC Vijander Thakur No. 105 and ASI Deep Chand have come present alongwith status report/record. Record perused and returned. 3. Close scrutiny of the status report reveals that on 17.1.2019, a motor cycle bearing No. HP83-5643, came to be intercepted by the police party present at Naka laid at Ghatasani. Person namely Karan Sood got down from the motor cycle, whereas driver of the said vehicle allegedly fled away from the spot. Since above named Karan Sood, got perplexed on seeing the police, in the presence of independent witness, police effected personal search of said person and his rucksack and allegedly recovered 1.120 kg of charas from the rucksack. Since aforesaid person was unable to render proper explanation for carrying aforesaid contraband, police after completion of codal formalities, lodged FIR detailed herein above. During investigation, Karan Sood, allegedly disclosed to the police that he alongwith another co-accused Rajiv Hussain alias Jibu was going on motor cycle of Shammi Sood. He further disclosed to the police that the co-accused Shammi Sood also came alongwith them in a taxi and purchased charas from one person near Jhatingari. Karan Sood is further alleged to have disclosed to the police that Rajiv Hussain alias Jibu checked the charas and thereafter, coaccused Shammi Sood purchased the same and gave it to him. Pursuant to aforesaid revelation made by Karan Sood, persons namely Rajiv Hussain alias Jibu as well as Shammi Sood came to be named in the FIR. Above named persons were lodged in jail since 31.1.2019 but as of today, all the above named accused stand enlarged on bail. Present bail petitioner, who subsequently came to be named in the FIR on the alleged statement made by Shammi Sood, wherein he allegedly stated that he had purchased commercial quantity of charas from the bail petitioner, Bhavan Kumar, who is behind the bars for more than two years. Present bail petitioner, who subsequently came to be named in the FIR on the alleged statement made by Shammi Sood, wherein he allegedly stated that he had purchased commercial quantity of charas from the bail petitioner, Bhavan Kumar, who is behind the bars for more than two years. Though, Challan stands filed in the competent Court of law but the charges are yet to be framed, as such, bail petitioner has approached this Court for grant of bail in the present proceedings. 4. 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 since there is overwhelming evidence available on record suggestive of the fact that the present bail petitioner Bhavan Kumar sold commercial quantity of charas to Shammi Sood, bail petition having been filed by him deserves outright dismissal. Learned Additional Advocate General, contends that since the bail petitioner was main source/supplier, he cannot claim any parity with other accused. Lastly, learned Additional Advocate General contends that previous conduct of the bail petitioner disentitles him for grant of bail in the case at hand. He states that in the past also, bail petitioner was booked under S.20 of the Act ibid but during the pendency of trial in that case, he has again indulged in illegal trade of narcotics, as such, prayer made on his behalf for grant of bail deserves outright rejection. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that the commercial quantity of contraband was recovered from the conscious possession of co-accused Karan Sood, who already stands enlarged on bail. Present bail petitioner alongwith other accused, Rajiv Hussain alias Jibu and Shammi Sood came to be named in the FIR, on the basis of statement made by above name co-accused, Karan Sood. If the statement made by said co-accused is perused in its entirety, he nowhere stated that the contraband recovered from his possession was sold to him by the bail petitioner, Bhavan Kumar, rather, he disclosed to the police that charas was purchased by co-accused Shammi Sood and he further handed over the same to him. If the statement made by said co-accused is perused in its entirety, he nowhere stated that the contraband recovered from his possession was sold to him by the bail petitioner, Bhavan Kumar, rather, he disclosed to the police that charas was purchased by co-accused Shammi Sood and he further handed over the same to him. Present bail petitioner came to be named in the FIR on the basis of statement of Shammi Sood that he purchased aforesaid contraband from bail petitioner, Bhavan Kumar, however, this Court was unable to lay its hands to material, if any, adduced on record suggestive of the fact that that Shammi Sood paid any amount to the bail petitioner, for purchase of contraband. Though, learned Additional Advocate General, while inviting attention of this Court to the Call Detail Record, made an attempt to persuade this Court to agree with his contention that since bail petitioner and co-accused Shammi Sood were in constant touch on the date of alleged incident, complicity of bail petitioner in the commission of alleged offence, cannot be ruled out, however, having carefully perused the Call Detail Record, this Court finds that on the date of alleged incident, Shammi Sood and Karan Sood repeatedly talked to each other. There is nothing on record, suggestive of the fact that on the date of alleged incident, bail petitioner had telephonic talk with Shammi Sood. Otherwise also, main accused Karan Sood, from whose conscious possession commercial quantity of contraband allegedly came to be recovered, stands enlarged on bail, other accused, namely Rajiv Hussain alias Jibu and Shammi Sood, who were named in the FIR on the basis of statement of Karan Sood, also stand enlarged on bail. 6. No doubt, in the case hand, commercial quantity of charas came to be recovered from one of accused, as such, rigours of S.37 of the Act are attracted, but careful perusal of S.37 of the Act nowhere suggests that bail cannot be granted in the cases involving commercial quantities, rather, in such cases, after having afforded opportunity to the Public Prosecutor Court can grant bail, if it has reasons to believe that the person seeking bail is not guilty of such offence and in the event of his being enlarged on bail, he would not indulge in such activities again. In the case at hand, evidence adduced on record, is not sufficient to conclude complicity, if any, of the bail petitioner as far as commission of offence under S.29 of the Act is concerned, as such, his prayer for grant of bail, deserves to be considered. 7. Though, aforesaid aspects of the matter are to be considered by learned trial Court in the totality of evidence but for the reasons stated supra, this Court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial especially when he has already suffered for more than two years and despite presentation of Challan, charge has not been framed as yet. 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. Bail petitioner is behind the bars for two years but till date charges have not been framed. 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 Amit 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. We order accordingly." 9. 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 Art. 21 of Constitution of India. Delay in trial has been held to be in violation of the right guaranteed under Art. 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 )." 10. No doubt, status report reveals that in the past, a case under the Act stands registered against the petitioner but in that case, guilt if any, of the bail petitioner is yet to be proved in accordance with law, as such, mere pendency of case cannot be made a basis at this stage to deny bail to the bail petitioner, whose complicity in the case at hand, is yet to be proved. 11. 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. 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. 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. 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." 12. 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. 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." 13. 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. 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. 14. 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. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 15. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 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. 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.2,00,000/- with one local surety in the like amount, to the satisfaction of the learned trial Court, 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. 17. 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. 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 petition alone. 19. The petition stands accordingly disposed of. 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 petition alone. 19. The petition stands accordingly disposed of. 20. Copy dasti.