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2021 DIGILAW 310 (HP)

Pawan Kumar v. State Of Himachal Pradesh

2021-05-11

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Bail petitioner, Pawan Kumar, who is behind the bars since 29.12.2020, has approached this Court in the instant proceedings filed under S.439 CrPC, for grant of bail in case FIR No. 40, dated 11.2.2020 under Ss. 15 and 25 of the Narcotic Drugs & Psychotropic Substances Act registered at Police Station Bhoranj, District Hamirpur, Himachal Pradesh. 2. Status report filed by the respondent-State, in terms of order dated 30.3.2021, reveals that on 11.2.2020 Pradhan, Gram Panchayat Mundkhar, informed the Police party present near Sulgwan Chowk, that there is one red coloured Maruti car bearing registration No. HR-03C-6909, standing abandoned near Sunehal Khadd. On the basis of aforesaid information, Police reached Sunehal Khadd and found the aforesaid car lying abandoned on the road side. Though, the doors of the vehicle were closed but since dickey of the vehicle was found open, police, in the presence of the independent witnesses, searched the vehicle and allegedly recovered four gunny bags containing 37.09 kg of poppy husk. After completion of codal formalities, police registered case under Ss. 15 and 25 of the Act ibid against unknown persons. To ascertain the involvement of the vehicle in the alleged incident, police procured CCTV footage of control room Una and found that on the date of alleged incident, vehicle in question was being driven near Mehatpur, District Una by the present bail petitioner. On the basis of documents recovered from the vehicle, police contacted the Regional Transport Officer, Panchkula and thereafter investigated the owner of the vehicle, Daya Shankar, resident of Panchkula. Above named Daya Shankar informed the police that on 21.12.2016, he had sold the car in question to the Modern Automobile in exchange offer for Rs.45,000/-. Modern Automobile, Industrial Area, Phase II, Panchkula, while confirming the sale made by Daya Shankar informed the Police that on 19.1.2017, vehicle sold by Daya Shankar was further sold to Kashi Tripathi, resident of Phase II, Ramdarbar Industrial area. Kashi Tripathi, on investigation revealed that he, after having purchased the vehicle from Modern Automobile, further sold the vehicle for Rs.27,000/- to the present bail petitioner in the months of September/ October 2017. However, he was unable to produce any affidavit/document with regard to sale-purchase of the vehicle in question. Kashi Tripathi, on investigation revealed that he, after having purchased the vehicle from Modern Automobile, further sold the vehicle for Rs.27,000/- to the present bail petitioner in the months of September/ October 2017. However, he was unable to produce any affidavit/document with regard to sale-purchase of the vehicle in question. He informed the Police that since the vehicle was sold to Pawan Kumar on Sunday, sale-purchase document could not be prepared and thereafter, Pawan Kumar never returned to collect the sale-purchase documents. In the aforesaid background, police after ten months of lodging of FIR, arrested the present bail petitioner on 29.12.2020 and since then, he is behind the bars. Prior to filing of the petition at hand, petitioner had approached learned Special Judge, under S.439 CrPC, for grant of bail, but such petition was dismissed vide order dated 4.3.2021. Since the Challan stands filed in the competent Court of law and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings in the changed circumstances. 3. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly acknowledging the factum with regard to filing of the challan, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency. Learned Deputy Advocate General, further contends that the present bail petitioner is a drug peddler and two cases already stand registered against him, as such, in the event of being enlarged on bail, bail petitioner may not only flee from justice but may indulge in such activities again as such, present petition deserves outright dismissal. 4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on 11.2.2020, car bearing registration No.. HR-03C-6909 was found lying abandoned near Sunehal Khadd, District Una, Himachal Pradesh and an intermediate quantity of poppy husk was recovered from the vehicle. The vehicle in question was though found to be in the name of Daya Shankar Sharma, resident of Panchkula, but he had sold the same to Modern Automobile in an offer for Rs.45,000/-, which further sold the vehicle to Kashi Tripathi, resident of Ramdarbar, Industrial Area. The vehicle in question was though found to be in the name of Daya Shankar Sharma, resident of Panchkula, but he had sold the same to Modern Automobile in an offer for Rs.45,000/-, which further sold the vehicle to Kashi Tripathi, resident of Ramdarbar, Industrial Area. Though, in the case at hand, above named Kashi Tripathi claimed before the investigating agency that in the months of September/October, 2017, he had sold the vehicle to the present bail petitioner, for Rs.27,000/-, but he was unable to produce any documents with regard to salepurchase, if any, made by him in favour of the present bail petitioner, rather, in the investigation, he himself admitted that since the vehicle in question was sold on Sunday to the present bail petitioner, affidavit/sale-purchase agreement could not be prepared. If, aforesaid version of Kashi Tripathi is accepted to be correct, it is not understood that how above named Kashi Tripathi, without there being execution of salepurchase agreement, permitted the present bail petitioner to ply the vehicle for more than two and a half years. Kashi Tripathi was fully aware of the fact that vehicle in question is in his name but yet he did not take any steps either to recover vehicle from the present bail petitioner or to lodge report in the police Since the vehicle in question at the time of alleged incident was not in the name of present bail petitioner and he was not found present at the time of recovery of contraband, mere CCTV footage, showing present bail petitioner driving the vehicle in question is not sufficient to conclude/rule out the complicity, if any, of the present bail petitioner, rather, said fact, is required to be proved in accordance with law by the investigating agency by leading cogent and convincing evidence. Moreover, quantity of contraband allegedly recovered from the vehicle is an intermediate one, as such, rigours of S. 37 of the Act ibid are not attracted. No doubt, status report reveals that in the past, two cases stand registered against the present bail petitioner under the Act ibid but during proceedings of the case, learned Counsel appearing for the petitioner produced a copy of the judgment dated 3.5.2021 passed by learned Additional Sessions Judge/Special Judge-II, in Sessions Trial No. 46/2017, wherein present bail petitioner has been acquitted of the charges framed against him in FIR NO. 20, dated 19.5.2017 registered at Police Station, Una. Similarly, in another case, guilt, if any, of the present bail petitioner is yet to be established on record, as such, mere pendency of same cannot be made a ground to deny bail to the present bail petitioner, especially when prosecution has not been able to connect the present bail petitioner with the contraband allegedly recovered from the vehicle in question, coupled with the fact that the vehicle in question was not found to be in the name of the present bail petitioner, rather same is in the name of one Kashi Tripathi. Though, aforesaid aspects of the matter are to be established on record in the totality of the evidence led on record by the investigating agency, but, having taken note of the aforesaid glaring aspects of the matter, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial, when he has already suffered for more than four months. 5. 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. Apprehension expressed by learned Deputy 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. 6. 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. 7. 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. 7. Hon'Ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 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. 8. 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. 9. 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. 10. 9. 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. 10. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed and the bail petitioner is ordered to be enlarged on bail, subject to 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 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. 11. 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. 12. 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. 13. The petition stands accordingly disposed of. Copy dasti.