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2021 DIGILAW 346 (HP)

Hari Singh v. State Of H. P.

2021-06-17

VIVEK SINGH THAKUR

body2021
JUDGMENT Vivek Singh Thakur, J. - Both petitions are being disposed of by this common judgment, as they arise out of the same FIR. 2. Petitioners have approached this Court seeking regular bail in case FIR No. 6 of 2021, dated 10.01.2021, registered in Police Station Padhar, District Mandi, under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act). 3. Status report(s) stand filed. Petitioners have also placed on record copy of challan and other documents on record. Petitioners have been arrested on 10th January, 2021 and after remaining in police custody, they are in judicial custody. 4. In status report, details of circumstances, in which charas weighing approximate one Kilogram has been recovered from petitioners, have been narrated. Petitioners had approached learned Special Judge-III, Mandi seeking regular bail by filing separate petitions, which stand dismissed on 30th April, 2021. 5. It is submitted on behalf of petitioners that learned Special Judge has committed a mistake by treating the recovered contraband of commercial quantity, alleged to have been recovered from petitioners. On the basis of report of State FSL Junga, he submits that weight of recovered contraband along with carrying bag has been found to be more than 1 Kg., but, without envelope, the weight of contraband has been found 979 grams, which is less than commercial quantity and therefore, learned Special Judge has wrongly invoked rigors of Section 37 of NDPS Act. 6. Learned counsel for the petitioner has further submitted that rule is bail, but, not jail as it is trite law that personal liberty cannot be taken away except in accordance with procedure established by law as personal liberty is a constitutional guarantee. Further that object of jail is to secure the appearance of accused person during trial by reasonable amount of bail and object of bail is neither punitive nor preventative and deprivation of liberty must be considered a punishment, unless it is required to ensure presence of an accused in his trial. Learned counsel has further submitted that there is possibility of delay in concluding the trial and, therefore, it is contended that there is no reason to deny the bail to the petitioners, rather, petitioners deserve to be enlarged on bail. Learned counsel has further submitted that there is possibility of delay in concluding the trial and, therefore, it is contended that there is no reason to deny the bail to the petitioners, rather, petitioners deserve to be enlarged on bail. To substantiate the plea taken on behalf of petitioners, seeking their enlargement on bail, learned counsel has relied upon judgments of Supreme Court in Gurubaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 ; Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav, (2005) AIR SC 921 ; Sanjay Chandra vs. Central Bureau of Investigation, (2012) AIR SC 830 ; and State of Kerala vs Raneef, (2011) AIR SC 340 . 7. Learned counsel for the petitioner has also relied upon two other judgments passed by Coordinate Benches of this Court in cases Cr.MP(M) No. 603 of 2020, titled as Gokul Chand vs. State of HP and Cr.MP(M) No. 925 of 2021, titled Durga Singh vs. State of HP. He further submits that in Gokul Chand's case the accused for alleged possession of 989 grams of charas has been enlarged on bail and in Durga Singh's case, the accused in a case of recovery of 954 grams, of charas has been granted anticipatory bail. 8. Learned Additional Advocate General has submitted that though bail is rule and jail is exception, but, at the same time the Court cannot shut its eyes from prevailing menace of drug abuse. He further submits that though, technically, recovered contraband is less than commercial quantity, however, it is nearest to commercial quantity. He further submits that though Section 37 of NDPS Act may not be attracted, but, for betterment of society and larger interest of public, petitioners are not entitled for bail for commission of heinous crime which is not only against State, but, also the interest of society at large. Therefore, he has pleaded for dismissal of bail petitions. 9. For adjudication of bail application, order passed in other cases arising out of different FIRs would rarely be a precedent. Only in a situation when every fact and circumstance in two cases is identical, it may be considered a binding precedent, however, otherwise, a single different factor or a circumstance may cause different result in adjudication of bail application particularly when two cases with different sets of circumstances are to be taken into consideration with each other. Only in a situation when every fact and circumstance in two cases is identical, it may be considered a binding precedent, however, otherwise, a single different factor or a circumstance may cause different result in adjudication of bail application particularly when two cases with different sets of circumstances are to be taken into consideration with each other. Only broad principles, parameter and factors are to be considered with consistency. 10. In Gokul Chand's case, though bail has been granted in a case where alleged recovery of contraband was 989 grams, but, the Coordinate Bench has categorically recorded that contraband was recovered from a locked house, which, according to bail petitioner, was neither owned nor occupied by him and Court has observed that there was no positive evidence on record to show any contrary position and, therefore, it was observed that whether contraband allegedly recovered from locked house belonged to petitioner or not, locked house belonged to petitioner or not and alleged recovery was effected in accordance with law were the questions to be answered after appreciation of evidence to be led during trial. Therefore, it cannot be said that facts in Gokul Chand's case, except one that recovered contraband was slightly less than commercial quantity, are similar, much less identical, to each other. 11. Similarly, in Durga Singh's case, petitioner therein was considered to be an accused on the basis of disclosure statement of co-accused from whose possession 954 grams charas was recovered. Petitioner therein was not main accused, but was a person who was considered to have been involved in commission of offence on the basis of statement made by other accused person apprehended on the spot by connecting petitioner with them on the basis of phone call conversation. Therefore, Durga Singh's case is also distinguishable. 12. It is true that normally, particularly when petitioner is ready to abide by conditions to be imposed by Court to ensure his presence in trial, bail should be granted, unless there is legal impediment to do so. But, at the same time, it is not allowed that every person is to be enlarged on bail in any circumstance. The discretion has been left on Court to exercise its power judiciously to adjudicate the issue whether petitioner before it is entitled for bail or not. 13. But, at the same time, it is not allowed that every person is to be enlarged on bail in any circumstance. The discretion has been left on Court to exercise its power judiciously to adjudicate the issue whether petitioner before it is entitled for bail or not. 13. In Gurbaksh Singh Sibbia's case, it has been observed that question, whether to grant bail or not, depends for its answer upon a variety of circumstances and final verdict would be on the basis of cumulative effect of such circumstances and any single circumstance cannot be treated as of universal validity or necessary justifying the grant or refusal of bail. 14. In Kalyan Chandra Sarkar's case it has been clarified that a person, accused of offence which is non-bailable, is liable to be detained in custody during pendency of trial unless he is enlarged on bail in consonance with law and such detention cannot be questioned as being violative of Article 21 since such detention is authorized by law and in such cases, the accused person is entitled for bail if the Court concerned comes to the conclusion that prosecution has failed to establish a prima facie case against him or if the Court is satisfied for reasons to be recorded that in spite of existence of prima facie case there is a need to release such person on bail. 15. In Raneef's case also, it has been observed by Court that detention for a long time is not the only factor, but is certainly one of important factors, in deciding whether to grant bail or not. 16. It is more than settled that at the time of grant of bail, not only interest of accused, but, that of victim as well as society is also to be taken into consideration. In present case, society is victim. The drug abuse not only spoils the life of addicts, but also spoils their families resulting into collapse of fabric of society leading to anarchy. Therefore, though quantity of contraband alleged to be recovered from petitioners, is less than commercial quantity, however, it is an admitted fact that the contraband, weighing nearer to commercial quantity, has been recovered. The drug abuse not only spoils the life of addicts, but also spoils their families resulting into collapse of fabric of society leading to anarchy. Therefore, though quantity of contraband alleged to be recovered from petitioners, is less than commercial quantity, however, it is an admitted fact that the contraband, weighing nearer to commercial quantity, has been recovered. It is true that at this stage petitioners are to be considered innocent, but, at the same time, it is not a case where it can be said that ex-facie no case is made out against the petitioners. Whether a case is made out or not for convicting the petitioners is an issue which is to be considered and decided by the trial Court/Magistrate/Special Judge after evaluation/assessment of material placed before them in accordance with law. In a case under NDPS Act, provision of reverse onus is also a relevant factor. 17. Petitioners have been arrested in January, 2021. At this sage, I also do not find any force in contention that petitioners are entitled for bail on the ground that conclusion of trial may take place after a considerable long time. 18. Without commenting upon merits of case, considering the cumulative effect of entire facts and circumstances placed before me, I do not find it a fit case to enlarge the petitioners on bail, at this stage. 19. Learned counsel for petitioners in alternative has submitted that in case of dismissal of petition, liberty may be granted to petitioners to approach this Court again. 20. In my opinion, an accused has a right to file successive bail applications, as permissible under law, and therefore, no liberty from the Court is necessary for filing such bail application either in this Court or in the Court of Special Judge having jurisdiction to decide the same. 21. Accordingly, the petitions are dismissed.