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2021 DIGILAW 471 (HP)

Himanshu Thakur v. State Of Himachal Pradesh

2021-07-28

SANDEEP SHARMA

body2021
JUDGMENT Sandeep Sharma, J. - Sequel to order dated 12.07.2021, whereby petitioner was ordered to be enlarged on bail, in the event of his arrest in FIR No.64/2021, dated 5.7.2021, under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substance Act, registered at Police Station Banjar, District Kullu, H.P., respondent-State has filed the status report, which is taken on record. 2. Perusal of status report reveals that on 5.7.2021, coaccused namely Sammi Kumar, after having seen the police at nakka laid down by the police near Sindhwa Chowk, tried to turn his motorcycle and allegedly, he also threw one bag in the nearby bushes. Since, conduct of above-named co-accused was suspicious, police stopped motorcycle and apprehended the above-named coaccused, from whose conscious possession, subsequently, 622 grams of charas/cannabis, came to be recovered. Since, no plausible explanation came to be rendered on record by above-named coaccused qua possession of aforesaid quantity of alleged contraband, police after completion of necessary codal formalities, lodged FIR against him as detailed hereinabove. During investigation, abovenamed co-accused, allegedly, disclosed to the police that he had purchased aforesaid quantity of contraband from present bail petitioner, for a sum of Rs.28,000/-. 3. In the aforesaid background, police while incorporating Section 29 of the Act in the FIR detailed hereinabove, also named present bail petitioner as an accused, who apprehending his arrest, has approached this Court in the instant proceedings, praying therein to grant anticipatory bail. 4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly stating that pursuant to order dated 12.7.2021, bail petitioner has joined the investigation and he is fully cooperating with the Investigating Agency, contends that though, nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offences alleged to have been committed by him, prayer having been made on his behalf for grant of bail, deserves outright rejection. While referring to the status report, learned Additional Advocate General states that there is ample evidence adduced on record suggestive of the fact that present bail petitioner sold aforesaid quantity of contraband to co-accused Sammi Kumar for a sum of Rs.28,000/- and call detail report further reveals that on the date of alleged commission of offence, co-accused Sammi Kumar and present bail petitioner were in constant touch with each other and as such, it cannot be concluded that bail petitioner has been falsely implicated. Lastly, Mr. Lastly, Mr. Bhatnagar, learned Additional Advocate General, contends that keeping in view the seriousness of the crime allegedly committed by the bail petitioner, he deserves no leniency and as such, prayer 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 intermediate quantity of contraband, i.e. 622 grams of charas, never came to be recovered from the conscious possession of present bail petitioner, rather same was recovered from the conscious possession of co-accused Sammi Kumar, who is behind the bars. Though, status report reveals that above-named co-accused Sammi Kumar, disclosed to the police that he purchased aforesaid quantity of contraband from the present bail petitioner for a sum of Rs. 28,000/-, but such fact, if any, is required to be proved in accordance with law by leading cogent and convincing evidence. Mere statement of coaccused Sammi Kumar, may not be sufficient, at this stage, to conclude/rule out the complicity, if any, of the present bail petitioner in the alleged commission of offence under Section 29 of NDPS Act. No record of financial transaction, if any, inter se bail petitioner and coaccused Sammi Kumar, is available on record and mere call detail report indicative of the fact that bail petitioner and co-accused Sammi Kumar, had been talking to each other on their mobile phones on or before the date of alleged commission, is not sufficient, at this stage, to conclude the guilt of bail petitioner. Status report reveals that many criminal cases stand registered against co-accused Sammi Kumar, whereas, there is nothing on record suggestive of the fact that bail petitioner had been indulging in these activities in past also and as such he otherwise being first offender deserves to be given benefit of doubt. Hon'ble Apex court as well as this Court in catena of cases, have repeatedly held that one is deemed to be innocent till the time his/her guilt is not proved in accordance with law. In the case at hand, there is no direct evidence to connect the present bail petitioner with the contraband allegedly recovered from the conscious possession of co-accused Sammi Kumar and such, it would not be fair to let bail petitioner incarcerate in jail for indefinite period during trial, especially, when nothing remains to be recovered from him. In the case at hand, there is no direct evidence to connect the present bail petitioner with the contraband allegedly recovered from the conscious possession of co-accused Sammi Kumar and such, it would not be fair to let bail petitioner incarcerate in jail for indefinite period during trial, especially, when nothing remains to be recovered from him. Otherwise also, quantity of contraband allegedly recovered in the alleged incident, is intermediate and as such, rigors of Section 37 of the Act, are not attracted. Apprehension expressed by the learned Additional Advocate General that in the event of being enlarged on bail, bail petitioner may flee from justice or tamper with prosecution evidence, can be best met by putting the bail petitioner to stringent conditions. 6. 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. 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. 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. 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. 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." 7. 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. 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. 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." 8. 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. 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. 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. 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." 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 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. 11. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Order dated 12.7.2021, is made absolute, subject to bail petitioner furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one 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. 12. 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. 13. 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. 14. The petition stands accordingly disposed of. Copy Dasti.