Himachal Pradesh High Court
Raj Kamal vs State Of Himachal Pradesh on 24 October, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1371 of 2018 .
Date of Decision No. 24.10.2018
Raj Kamal ..... Petitioner
Versus
State of Himachal Pradesh .....Respondent
For the petitioner: Mr. N.S.Chandel. Advocate.
For the respondent: M/s S.C.Sharma, Dinesh Thakur and
Sanjeev Sood, Additional Advocate
Generals.
__________________________________________________________ Sandeep Sharma, Judge (oral):
Bail petitioner namely, Raj Kamal, who is behind the bars since 22.11.2017, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.275 of 2017, dated 22.11.2017, under Sections 20,c25 & 29 of the Narcotics Drugs & Psychotropic Substances Act ( for short "ND&PS Act"), registered at police Station, Kullu, District Kullu, H.P. ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 2
2. Sequel to order dated 12.10.2018, S.I Nag Dev, Police Station, Sadar, District Kullu,H.P., has come present alongwith .
record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
3. Careful perusal of the record/status report reveals that on 22.11.2017 bail petitioner alongwith two coaccused came to be apprehended by the police with contraband i.e. charas weighing 3 Kg. 25 grams, at place called Suma Ropa, District Kullu, H.P. Immediately, after alleged recovery of aforesaid contraband, a case under Section 20, 25 & 29 of the ND&PS Act, came to be registered against the bail petitioner and since then bail petitioner alongwith other coaccused is behind the bars.
4. Prior to approaching this Court in the instant proceeding for grant of regular bail, bail petitioner had approached learned Special Judge II, Kullu, District Kullu, H.P., for grant of bail, but petition filed by him under Section 439 Cr.P.C., came to be rejected vide order dated 15.3.2018.
::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 35. Present bail petition has been filed before this Court primarily on medical grounds. Averments contained in the .
application as well as documents annexed therewith, clearly suggest that keeping in view the medical condition of the bail petitioner, medical Board came to be constituted, who found petitioner to be suffering from HIV infection and Pulmonary Tuberculosis with Acute Inflammatory Demyelinating Poly Radiculoneuropathy, as a consequence of which, petitioner is totally confined to bed and requires emergent life support/ resuscitation at any moment.
6. Careful perusal of communication, dated 13.9.2018(Annexure P1) written by Superintendent, Model Central Jail Kanda (Shimla), suggests that an emergent request was made by Jail Superintendent, Kanda to Medical Superintendent of IGMC, Shimla to admit the bail petitioner at IGMC keeping in view his poor medical condition. In the aforesaid communication, Superintendent jail has categorically stated that no adequate facility is available in Jail at Kanda to meet emergent situation, if any, arises in the case of the bail ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 4 petitioner. Though, there is no specific mention, if any, with regard to medical condition of bail petitioner in the status report .
having been filed by the respondentState, but medical record made available to this Court by the learned Additional Advocate General, clearly suggests that bail petitioner is repeatedly not only taken to IGMC, Shimla, but occasionally he is also taken to PGI, Chandigarh for treatment.
7. Mr. N.S. Chandel, learned counsel representing the petitioner while referring to medical record of the bail petitioner, contended that keeping in view the medical condition of bail petitioner, it is not safe to keep him in jail, rather he deserves to be enlarged on bail, so that he is provided good medical facility by his family members. While referring to the report given by the medical Board and the communication sent by Jail Superintendent, Kanda, Mr. Chandel, contended that since bail petitioner is totally confined to bed, no fruitful purpose would be served in case bail petitioner is allowed to incarcerate in jail for indefinite period during the pendency of the trial, especially when his health is not good. Mr. Chandel further contended that ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 5 otherwise also, challan stands filed in the competent court of law and nothing is required to be recovered from the bail petitioner .
and as such, there is no impediment, if any, in accepting the prayer having been made by the bail petitioner for grant of bail.
Mr. Chandel, further contended that keeping in view the physical condition of bail petitioner, there is no likelihood of his fleeing from justice and he can be enlarged on bail by putting him to some stringent conditions.
8. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to serious illness of bail petitioner, contended that as per the communication sent by the Jail Superintendent, Kanda to medical Superintend, IGMC Shimla, it is not safe to keep bail petitioner in jail and as such, he was got admitted in IGMC Shimla. He fairly submitted that there is no adequate facility available in jail at Kanda to meet the emergent situation, if any, arises in the case of the bail petitioner, who admittedly is suffering from HIV and Pulmonary Tuberculosis. Mr. Thakur, further contended that though bail petitioner is involved in ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 6 heinous crime, but keeping in view his present health condition prayer having been made by the bail petitioner for grant of bail .
may be considered subject to putting him to stringent conditions.
9. Having heard learned counsel for the parties and perused the material available on record, especially medical record made available to this Court during the proceeding of the case, this Court finds that bail petitioner, who is behind the bars since 22.11.2017 is suffering from HIV as well as Pulmonary Tuberculosis. Medical record clearly reveals that repeatedly bail petitioner has been taken to IGMC Shimla as well as PGI, Chandigarh. Medical Board constituted to assess the medical condition of bail petitioners, has categorically opined that due to medical condition of bail petitioner, he is totally confined to bed and as such, this Court finds considerable force in the arguments of learned counsel for the petitioner as well as learned Additional Advocate General that it would not be safe to keep the bail petitioner in jail for indefinite period during the trial, rather he needs to be enlarged on bail, so that best help and care is provided to him by his family. Though, jail authorities are ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 7 trying its best to provide best medical help to the bail petitioner, but, there is no permanent medical help available at Jail and as .
such, it would be in the interest of bail petitioner to enlarge him on bail so that he is taken care of by his family members. During the proceedings of the case, this Court was informed that bail petitioner constantly requires some attendant which cannot be definitely provided at Jail. Keeping in view the medical condition of the bail petitioner, two family members were allowed to stay alongwith the bail petitioner in the hospital. Moreover, this Court cannot loose sight of the fact that bail petitioner is suffering from diseases, which are contagious i.e. pulmonary Tuberculosis and in case bail petitioner is allowed to remain behind the bars, there is every possibility of infection being spread out.
10. There is no doubt that offence alleged to have been committed by the bail petitioner is heinous and rigour of Section 37 of ND& PS Act, are attracted in the present case. In the given facts and circumstances of the case, it would be inhumane to keep the bail petitioner behind the bars, especially, ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 8 till the time, he fully recovers from the disease/ailment allegedly suffered by him. No doubt, petitioner is alleged to have been .
involved in serious crime, but guilt, if any, of him is yet to be proved, in accordance with law. Taking note of the health condition of the bail petitioner, this Court has reasons to presume that there is no likelihood of petitioner's indulging in illegal trade of narcotics during the pendency of the trial, which is one of the factor to be borne in mind, while considering the prayer for grant of bail during the pendency of the trial.
11. Hon'ble Apex Court in case titled Dipak Shubhashchandra Mehta versus Central Bureau of Investigation and another; (2012) 4 Supreme Court Cases 134, while considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, granted bail pending trial on stringent conditions. In the case before the Hon'ble Apex Court, appellant while in custody had contracted/obstructive jaundice requiring long intensive treatment. As a result of such obstructive jaundice, the appellant was unable to undergo other required ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 9 surgeries. It would be profitable to reproduce para Nos. 34 and 35 of the judgment herein: .
" 34. As posed in Sanjay Chandra Vs.CBI,(2012)1 SCC 40, we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above.
35. As observed earlier, we are conscious of the fact that the present appellant alongwith others is charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that though the investigating agency has completed the investigation and submitted the charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed, therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail pending trial on stringent conditions in order to safeguard the interest of CBI."
12. 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 cannot be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 10 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.
13. By now it is well settled that gravity alone cannot be 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 ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 11 Investigation (2012)1 Supreme Court Cases 49; wherein it 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. 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 ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 12 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."
14. 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail.
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. In the case at hand, it is not in dispute that trial is almost complete and only two prosecution witnesses remain to be examined.
Taking note of the medical condition of bail petitioner, there appears to be no force in the argument of learned Additional ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 13 Advocate General that in the event of petitioner's being enlarged on bail, he may influence remaining prosecution witnesses.
.
15. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. 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.
16. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail on executing a bond with two solvent sureties, each in a sum of Rs. 2 lakhs to the satisfaction of the learned trial Court, with following conditions:
::: Downloaded on - 25/10/2018 22:56:41 :::HCHP 14a. 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 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.
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 his 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 the petition alone.
The bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma), Judge 24th October, 2018 (shankar) ::: Downloaded on - 25/10/2018 22:56:41 :::HCHP