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2023 DIGILAW 92 (HP)

Talbe Ram v. State of Himachal Pradesh

2023-02-28

SANDEEP SHARMA

body2023
JUDGMENT : Sandeep Sharma, J. By way of present petition filed under Section 439 CrPC, bail petitioner Talbe Ram, has approached this Court, for grant of regular bail in case FIR No. 23/19 dated 1.2.2019 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, registered at Police Station Bhunter District Kullu, Himachal Pradesh. 2. Status report filed in terms of order dated 30.1.2023 reveals that on 31.1.2019 at 10:30 p.m, police stopped bus bearing registration No.DL1PC-4550 for checking. Since during checking, passengers sitting on seats No.1 and 2 got perplexed and tried to hide something beneath their seats, police after having associated independent witnesses effected their personal search as well as of bag kept beneath their seats and allegedly, recovered one bag, containing 2 kg. 225 grams of charas. Since passengers sitting on seats No. 1 and 2 were unable to render proper explanation qua the possession of the aforesaid commercial quantity of the contraband, police after registration of FIR, arrested the accused on 1.2.2019 and since then, the bail petitioner is behind the bars, whereas other co-accused namely Megh Singh already stands enlarged on bail vide order dated 12.1.2023 passed in CrMP(M) No. 39 of 2023. Since Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings, for grant of regular bail on the ground of inordinate delay in conclusion of trial. 3. Mr. Parveen Chandel, learned counsel for the petitioner vehemently states that contraband was never recovered from the conscious possession of the bail petitioner, rather from the bag kept beneath his seat and as such, he has been falsely implicated. He further submits that it is yet to be established on record that bag kept below the seat occupied by the bail petitioner was belonging to him and till the time said fact is not proved by leading cogent and convincing evidence, bail petitioner is deemed to be innocent. He further submits that otherwise also, petitioner deserves enlargement on bail on account of delay in conclusion of trial. Learned counsel for the petitioner submits that as of today, only four prosecution witnesses have been examined out of twenty prosecution witnesses. He further submits that otherwise also, petitioner deserves enlargement on bail on account of delay in conclusion of trial. Learned counsel for the petitioner submits that as of today, only four prosecution witnesses have been examined out of twenty prosecution witnesses. While inviting attention of this court to the order dated 12.1.2023, passed by this Court in Cr.MP(M) No. 39/2023, learned counsel for the petitioner submits that co-accused already stands enlarged on bail on the ground of inordinate delay in conclusion of trial and as such, petitioner being similarly situate also deserves to be enlarged on bail. 4. Mr. Rajan Kahol, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of Challan in the competent court of law, 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 and his prayer for grant of bail, deserves outright rejection. Learned Additional Advocate General submits that there is overwhelming evidence available on record to suggest that bail petitioner alongwith co-accused had been transporting the commercial quantity of contraband on the date of the alleged incident in a bag allegedly recovered from beneath their seats and as such, it cannot be said that they have been falsely implicated. He submits that delay, if any, in conclusion of the trial was on account of COVID-19 and since number of prosecution witnesses are being examined after short intervals, there is no force in the submissions of learned counsel for the petitioner that there is every likelihood of delay in conclusion of the trial. He submits that in the event of petitioner’s being enlarged on bail, he may flee from justice and may indulge in such like activities again and as such, prayer made by the petitioner for grant of bail may be rejected outrightly. 5. He submits that in the event of petitioner’s being enlarged on bail, he may flee from justice and may indulge in such like activities again and as such, prayer made by the petitioner for grant of bail may be rejected outrightly. 5. Having heard the learned counsel representing the parties and having perused status report, though this court finds it difficult to agree with learned counsel appearing for the petitioner that bail petitioner has been falsely implicated because recovery was effected in the presence of independent witnesses, but there appears to be force in the submission of learned counsel for the petitioner that complicity, if any, of the bail petitioner is yet to be established by leading cogent and convincing evidence that bag, from which commercial quantity of contraband was recovered, actually belonged to the bail petitioner, especially when it is admitted case of the prosecution that commercial quantity of contraband was recovered from the bag kept beneath the seats No. 1 and 2, being occupied by present bail petitioner and co-accused Megh Singh. Leaving everything aside, this court finds that bail petitioner is behind bars since 31.1.2019 and till date, only four prosecution witnesses have been examined. No doubt, in the last two years, no much substantial work could be done by learned trial courts on account of restrictions imposed due to COVID-19, but the petitioner, who is behind bars without his having been held guilty, cannot be made to suffer indefinitely, especially when there is nothing on record to suggest that petitioner delayed the trial. Since majority of prosecution witnesses are yet to be examined, there is every likelihood of delay in conclusion of the trial and in that eventuality, if petitioner is allowed to incarcerate in jail for an indefinite period, it would not only amount to pre trial conviction, but would also be against the provisions of Article 21 of the Constitution of India. 6. 6. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions. 7. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial. 8. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail, especially in the cases where rigors of Section 37 are attracted. 9. No doubt quantity of contraband allegedly recovered from the bail petitioner is commercial and as such, rigours of S. 37 of the Act are attracted but bare perusal of provisions contained under S.37 nowhere suggests that no bail can be granted in cases involving commercial quantity rather in such cases, court after affording due opportunity of hearing to public prosecutor can proceed to grant bail, if it is satisfied that the bail petitioner has been falsely implicated and in the event of bail he will not indulge in such activities again. 10. 10. In the instant case, bail petitioner is behind bars since 2 years and 10 months and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial, keeping in view the fact that the bail petitioner is a first offender and there is no other case against him, apart from the present one. 11. 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. Apprehension expressed by learned Assistant 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. 12. 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 been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. 13. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 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. 14. 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. 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. 15. 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. 16. 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. 5,00,000/- 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. 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 application alone. The petition stands accordingly disposed of. 19. 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 application alone. The petition stands accordingly disposed of. 19. The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.