Himachal Pradesh High Court
Sh. Gaurav Thakur vs State Of Himachal Pradesh on 17 July, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 977 of 2019
Decided on July 17, 2019
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Sh. Gaurav Thakur ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
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For the petitioner Mr. G.S. Rathour, Advocate.
For the respondent Mr. Sanjeev Sood and Mr. Sudhir
Bhatnagar, Additional Advocates
General and Mr. Kunal Thakur,
r Deputy Advocate General.
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Sandeep Sharma, J. (Oral)
Bail petitioner, Gaurav Thakur, who is behind bars since 23.12.2018, has approached this court, in the instant proceedings filed under S.439 CrPC, for grant of regular bail in FIR No. 367, dated 23.12.2018 under S.21 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station, Sadar, Solan, Himachal Pradesh.
2. Close scrutiny of the record/status report made available to this Court reveals that on 23.12.2018, police, after having received information /complaint from the Director, Shoolini University, Solan, apprehended bail petitioner with 6.94 grams of Heroin. Record further reveals that prior to 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 2reaching of the police on the spot, College Authorities had actually caught the bail petitioner, who was roaming in the .
premises of the college without there being any authority.
College Authorities suspecting credentials of the bail petitioner asked him to give his search. In the alleged search contraband as detailed above, was recovered. Subsequently, the Police weighed the contraband and found same to be 6.94 grams.
After completion of necessary codal formalities, Police lodged FIR, detailed herein above, against the bail petitioner, on 23.12.2018, and since then, he is behind the bars.
3. Mr. Sanjeev Sood, learned Additional Advocate General, while acknowledging the factum with regard to completion of investigation, contended that though at this stage, nothing is required 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. Mr. Sood, learned Additional Advocate General further contended that as per investigation, bail petitioner had gone to Shoolini University with a view to sell narcotics to the students of the College and as such, he does not deserve to be enlarged on bail.
4. Mr. G.S. Rathour, learned counsel, while refuting the aforesaid contention/submission made by learned ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 3 Additional Advocate General, contended that the recovery, if any, fo the contraband is highly doubtful because, admittedly, .
in the case at hand, bail petitioner was apprehended by College authorities and not by the Police. Mr. Rathour further contended that the bail petitioner has been falsely implicated because the bail petitioner, who is a young person of 24 years of age, had gone to Shoolini University to meet his friends.
Lastly Mr. Rathour, contended that though there is no evidence to conclude that the bail petitioner was carrying narcotics alongwith him, but even if story of the prosecution is presumed to be correct, bail petitioner is entitled to bail keeping in view the quantity of contraband allegedly recovered from him.
5. Having heard learned counsel for the parties and perused the material available on record, this court is not in agreement with Mr. Rathour, learned counsel for the bail petitioner that there is nothing on record to suggest that the bail petitioner was apprehended carrying 6.94 grams of Heroin on the date of alleged incident, because statements having been made by witnesses associated by the Police reveal that the bail petitioner was found roaming in the College premises without any authority and subsequently, he admitted his guilt and begged for pardon. Though recovery in the case at hand, ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 4 never came to be effected by the Police, but it would be too early to conclude at this stage that recovery, if any, of the .
contraband is vitiated on account of non-compliance of various provisions of the Act ibid.
6. Leaving everything aside, this court having taken note of the fact that the bail petitioner has already suffered for more than seven months and there is nothing to suggests that he has been earlier indulging in such activities, sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial. Moreover, quantity allegedly recovered from the bail petitioner is an 'intermediate' quantity and as such, rigours of S.37 of the Act ibid are not attracted to this case.
Though aspects with regard to compliance of various provisions of the Act ibid, while conducting search of bail petitioner are to be considered and decided by the court below in the totality of evidence to be collected on record by investigating agency, but for the reasons stated above, this court sees no reason to curtail the freedom of the petitioner for an indefinite period, moreover, when nothing has been placed on record to demonstrate that the bail petitioner is a drug peddler and earlier also some case was registered against him.
7. Moreover, guilt, if any, of the petitioner is yet to be proved by the prosecution by leading cogent and convincing ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 5 evidence in accordance with law, as such, this court does not deem it proper to curtail the freedom of the bail petitioner for .
an indefinite period during trial.
8. 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. 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 ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 6 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 ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 7 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."
9. 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 Supreme Court Cases 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 ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 8 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."
10. 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.
::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 911. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
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"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."::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 10
12. 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 r influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
13. In view of above, bail petitioner has carved out a case for himself and as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000/- (Rs.
One Lakh) with one local surety in the like amount, to the satisfaction of the trial court/Chief Judicial Magistrate concerned, 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 ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP 11 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.
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(e) He shall surrender passport, if any, held by him.
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 petition alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge July 17, 2019 (vikrant) ::: Downloaded on - 29/09/2019 00:53:10 :::HCHP