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Himachal Pradesh High Court · body

2021 DIGILAW 188 (HP)

Arjun v. State of Himachal Pradesh

2021-03-30

SANDEEP SHARMA

body2021
JUDGMENT : SANDEEP SHARMA, J. 1. By way of present bail petition filed under Section 439 Cr.PC, prayer has been made on behalf of the bail petitioner, for grant of regular bail in case FIR No. 119/19 dated 28.11.2019, under Sections 21 and 29 of the ND&PS Act, registered at Police Station Parwanoo, District Solan, Himachal Pradesh. Respondent State has filed the Status report in terms of order dated 24.2.2021. ASI Roshan lal, I.O. P.s. Parwanoo, District Solan H.P., is also present with records. Records perused and returned. 2. Record/status report reveals that police on 28.11.2019 at about 5:10 pm, after having received secrete information raided room No.104 of Hotel Royal Regency, Parwanoo and allegedly, recovered 18.44 grams of heroin/chitta and currency notes of Rs. 45,000/- from the suit case of the present bail petitioner. Besides above, police recovered three syringes with needle, foil paper and half burnt note of Rs.10. Since bail petitioner and other-co-accused namely Sonu Kumar failed to render proper explanation qua the possession of aforesaid quantity of contraband, police after completion of necessary codal formalities, registered FIR, as detailed herein above, and since then, bail petitioner is behind bars, whereas other co-accused namely Sonu Kumar stands already enlarged on bail vide order dated 22.3.2021 passed by coordinate Bench of this court in Cr.MP(M) No. 264 of 2021. Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner coupled with the fact that co-accused already stands enlarged on bail, bail petitioner has approached this Court in the instant proceedings under the changed circumstances. 3. Mr. Kunal Thakur, learned Deputy Advocate General while fairly admitting factum with regard to filing of challan in the competent court of law contends that 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 made on his behalf for grant of bail deserves to be rejected outrightly. Learned Deputy Advocate General while making this court peruse record submits that petitioner is not a drug addict, rather is a drug paddler and as such, in the event of his being enlarged on bail, he may not only flee from justice, but may also indulge in such like activities again and as such, prayer for grant of bail may not be accepted. 4. 4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of the alleged incident, police on the basis of secrete information raided room No. 104 of Hotel Royal Regency, Parwanoo and allegedly recovered intermediate quantity of heroin/chitta from the luggage of the accused. Co-accused Sonu Kumar , who stands already enlarged on bail, claimed before the police that luggage from where contraband came to be recovered, belongs to the present bail petitioner, but record reveals that room No.104 in the hotel in question was booked in the name of person namely Saurabh Kumar, who in his investigation disclosed to the police that he had booked the room for the accused. But it does not appear from the record that police made effort, if any, to find out involvement, if any, of Saurbh Kumar in the case. Besides above, this Court finds that police after having effected recovery from room No.104 made parcel containing 18.44 grams of heroin/chitta, three syringes with niddle, one foil paper and one half burnt currency note of Rs. 10 and then, sealed the same with impression “y” in eight seals, however, inventory presented by the investigating agency under Section 52 (A) (2) before the Magistrate reveals that three syringes with needle were not produced. Moreover, report of FSL reveals that parcel made available to it contained syringes also. Apart from above, on the parcel received by FSL, court seals were fixed, but there is no such mention in the certificate issued by the magistrate under Section 52 (A) (3). 5. Mr. Vipin Pandit, learned counsel for the petitioner while inviting attention of this court to the aforesaid aspect of the matter vehemently argued that on account of aforesaid discrepancies, very recovery has become doubtful and as such, it cannot be concluded that report of FSL is qua the contraband allegedly recovered from the room No. 104. 5. Mr. Vipin Pandit, learned counsel for the petitioner while inviting attention of this court to the aforesaid aspect of the matter vehemently argued that on account of aforesaid discrepancies, very recovery has become doubtful and as such, it cannot be concluded that report of FSL is qua the contraband allegedly recovered from the room No. 104. Though, this Court is of the view that aforesaid aspect of the matter would be considered by the court below in the totality of evidence collected on record by the investigating agency, but having noticed aforesaid discrepancies, coupled with the fact that other coaccused Sonu Kumar already stands enlarged on bail, there appears to be no justification to keep the present bail petitioner behind bars for an indefinite period, especially when he has already suffered for more than 1½ years. Otherwise also, contraband allegedly recovered from the luggage of the bail petitioner is of intermediate quantity and as such, rigors of Section 37 of the Act are not attracted. No doubt, petitioner has indulged in crime having wide impact on the society, but at the same time, this court cannot lose sight of the fact that guilt, if any, of the petitioner is yet to be proved in accordance with law. Though status report reveals that bail petitioner in past also had been indulging in such like activities, but since guilt, if any, of him, is yet to be proved in that case also, it would not be in the interest of justice to deny the bail to the petitioner in the case at hand on the basis of pendency of the case registered in past. Apprehension expressed by learned Deputy 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. 6. 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, his prayer for grant of bail deserves consideration 7. Since guilt, if any, of the bail petitioner is yet to be proved, in accordance with law, his prayer for grant of bail deserves consideration 7. 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. 8. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 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.” 9. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218 , The Hon’ble Apex Court has held as under:- “This Court in Sanjay Chandra v. CBI, 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 or 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 to 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 ad 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 the 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.” 10. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 10. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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. 11. Bail petitioner is behind bars for more than 1½ years, but charges are yet to be framed. Accused cannot be kept behind bars for indefinite period pending trial. Delay in criminal trial has been held to be in violation of right guaranteed to the accused under Section 21 of the Constitution of India. In this regard, 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 ). 12. (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 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. 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. 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. 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. 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. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 handover passport, if any, to the Investigating Agency. 14. 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. 15. 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. The petition stands accordingly disposed of. Copy dasti.