Himachal Pradesh High Court
Mohammad Junaid vs State Of Himachal Pradesh on 28 February, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 62 of 2020
Reserved on : February 17 , 2020
Date of Decision : February 28 , 2020.
Mohammad Junaid ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. Javed Khan, Advocate, for the petitioner. For the respondent : Ms. Ritta Goswami and Mr. Nand Lal Thakur, Additional Advocates General with Mr. Yudhbir Singh Thakur, Dy.A.G. for the respondent/State.
Anoop Chitkara, Judge.
The petitioner apprehending his imminent arrest on being arraigned as accused, in FIR Number 306 of 2019, dated Dec 11, 2019, registered under Sections 39(1)(A) of the H.P. Excise Act and 420, 120B of the Indian Penal Code, 1860, in the file of Police Station Baddi, District Solan, HP, disclosing non-bailable offences, came up before this Court under section 438 CrPC, seeking anticipatory bail.
2. The status report filed. I have heard counsel for the parties and seen the status report(s) as well as the police file to the extent it was necessary for deciding the present petition, and the police file was duly returned through the Counsel appearing for the State.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 28/02/2020 20:25:27 :::HCHP 23. The counsel for the petitioner states that the accused had joined the investigation as and when the Investigating Officer so directed. Learned Additional Advocate General did not dispute this averment.
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4. FACTS:
The gist of the case, apposite to decide the present bail petition, discloses the following factual matrix:
(a) On Dec 11, 2019 complainant Angesh Vimal, posted as ASTEO NPB, Baddi, received a secret information that illicit liquor is being transported in a truck. On this, they stopped the truck in Baddi area.
This truck was bound from Panchukala to Mandi having its registration No. HP69-5452. After that, they nabbed the driver of the truck namely Mohinder Singh and conducted inquiries from him. He revealed that the truck contained eggs and also produced the GST Bills but on further search they recovered huge quantity of liquor of brand Una No. 1. After that the Complainant informed Suresh Thakur, ACSTENPB, Baddi who reached at the spot within few minutes. This information was also supplied to the police which, on reaching the spot seized the vehicle. After that police took the vehicle to the police station and unloaded it. They recovered 835 boxes of illicit liquor. The driver of the truck could not produce any permit with regard to the same. On interrogation, he revealed that Contractor Kamal Kishore had got these boxes loaded at Panchkulla and that he was escorting this truck in his XUV vehicle. The driver further revealed that Kamal Kishore is the owner of the said liquor. After that police conducted investigation of Kamal Kishore and arrested him. During investigation the owner of the truck was found to be one Manoj Kumar. On interrogation Manoj Kumar told that he is involved in the business of illicit ::: Downloaded on - 28/02/2020 20:25:27 :::HCHP 3 trafficking of liquor and he has liquor vends in Ghumarwin. He further revealed that he has purchased this liquor from one Naushad Alam. He also revealed that one Kulwinder resident of .
Delhi was also allociated with him. After arrest Kulwinder told that this Naushad Alam works in a liquor factory near Kala Amb. After that police brought said Kulwinder from Delhi to Baddi and came to know that Naushad Alam works in Himachal Spirit Company as Manager. Further investigation revealed that said Naushad Alam is Manager in the said factory.
(b) Petitioner Mohammad Junaid who was apprehending arrest in this case had filed petition under Section 438 CrPC in this Court.
A Co-ordinate Bench of this Court vide order dated Jan 8, 2020 had granted interim protection to the bail petitioner. On Jan 24, 2020, the Investigating Officer informed the Court that although the petitioner had joined the investigating but he was not fully cooperating. On this, the Court had directed the petitioner to fully cooperate in the investigation failing which interim bail would be liable to be cancelled. The matter was further listed on Feb 17, 2020, when the State did not raise the plea that the petitioner did not join investigation or was not cooperating in the investigation. .
5. ANALYSIS AND REASONING:
(i) Retrospection of the facts would reveal that no co-accused has revealed any role played by the bail petitioner as on date so as to deny him the interim bail.
(ii) Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with ::: Downloaded on - 28/02/2020 20:25:27 :::HCHP 4 witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
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JUDICIAL PRECEDENTS:
6. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 : A Constitutional bench of Supreme Court holds, "30. ...It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
7. In Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, Supreme Court holds, Relevant consideration for exercise of the power:
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail.
In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Criminal Procedure Code by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:::: Downloaded on - 28/02/2020 20:25:27 :::HCHP 5
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as .
to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
8. Given the above reasoning, in my considered opinion, the custodial investigation of the petitioner/accused is not going to serve any purpose ::: Downloaded on - 28/02/2020 20:25:27 :::HCHP 6 whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
(i) The petitioner had joined the investigation and co-operated.
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(ii) In the status report, there is no mention of previous criminal history of the bail petitioner.
(iii) The petitioner is a permanent resident of address mentioned in the memo of parties. Therefore, his presence can always be secured.
(iv) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail.
9. Consequently, the present petition is allowed. The interim order dated Jan 8, 2020, as extended from time to time, is made absolute, on the terms and conditions as mentioned therein, apart from the following additional conditions:
(a) The petitioner undertakes to attend the trial.
(b) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if such Court directs to do so.
(c) The petitioner shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.
(d) The petitioner shall co-operate in the investigation.
(e) The petitioner shall not hamper the investigation.
(f) The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses, ::: Downloaded on - 28/02/2020 20:25:27 :::HCHP 7
(g) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.
(h) The petitioner undertakes not to make any inducement .
threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
(i) In case, the petitioner is arraigned as accused of the commission of any offence, prescribing the sentence of imprisonment of more than seven years and in case the bail petitioner is arraigned as accused in any case, under the provisions of the Excise Act & NDPS Act, irrespective of the quantity, be it a small quantity, then within thirty days of knowledge of such FIR, the petitioners shall intimate the SHO of the present police station, with all the details of the present FIR as well as the new FIR. It shall be open for the State to apply to this Court or to the Trial Court for cancellation of this bail, if it deems fit and proper.
(j) Within 30 days from today, the petitioners shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.
(k) Apart from above, in case the Petitioner does not turn up before the Trial Court, then the trial Court may issue Non- Bailable warrants and send the petitioner to the Judicial Custody for the period for which the presence of the petitioner cannot be dispensed with. If the petitioner violates any other condition(s) as stipulated in this bail order, then the Trial Court may direct the Public Prosecutor to file a cancellation ::: Downloaded on - 28/02/2020 20:25:27 :::HCHP 8 application before it and it shall be lawful and permissible for the Trial Court to cancel the bail.
(l) In case the petitioner repeats the offence or commit any .
offence where the sentence is seven years or more, then before granting bail, the Courts shall consider the fact that he was warned earlier about not repeating the offence and not committing it.
10. This order of bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the petitioners.
11. In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any condition, then, the petitioner may file a reasoned application for modification of such term(s).
12. The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.
13. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
14. Petition stands allowed in the terms mentioned above.
Copy dasti.
(Anoop Chitkara), Judge.
February 28 , 2020 (PK) ::: Downloaded on - 28/02/2020 20:25:27 :::HCHP