Himachal Pradesh High Court
Naveen Bura vs State Of Himachal Pradesh on 1 May, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 448 of 2018
Decided on May 1, 2018
_________________________________________________________________
.
Naveen Bura ... Petitioner
Versus
State of Himachal Pradesh Respondent
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the petitioner : Mr. R.K.Bawa, Senior Advocate with
Mr. Somender Chandel, Advocate.
For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Vikrant
r Chandel, Deputy Advocate General.
ASI Krishna, I/O, Police Station
Sadar, Solan, district Solan,
Himachal Pradesh.
_________________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely Naveen Bura, who is behind the bars since 26.12.2016, has approached this Court in the instant proceedings filed under Section 439 CrPC, seeking therein regular bail in FIR No. 297 of 2016 dated 26.12.2016, under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station Sadar, District Solan, Himachal Pradesh.
2. Sequel to orders dated 13.4.2018 and 27.4.2018, ASI Krishna, I/O, PS Sadar, Solan, Himachal Pradesh, has 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 2come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has placed on record status report prepared on the basis of investigation carried out by the .
investigating agency. Record perused and returned.
3. Careful perusal of record/status report reveals that on 26.12.2016, police party headed by ASI Ashwani Thakur (PW-15), on the basis of secret information, intercepted vehicle bearing registration No. HR-46C-5936 at Saproon, Solan. Three persons including present bail petitioner were sitting in the vehicle referred to herein above and on search, contraband i.e. Charas weighing 2.002 kg came to be recovered from the conscious possession of co-accused namely Kapil. Police associated two independent witnesses on the spot namely Rajesh Thakur (PW-1) and Rajesh Verma (PW-2). After completing the codal formalities, police registered FIR detailed herein above and arrested all the three accused including present bail petitioner. Bail petitioner by way of CrMP(M) No. 541 of 2017 approached this Court for grant of bail in the month of May, 2017, however, same was disposed of with the direction to the learned Special Judge-II, Solan to re-hear the bail application No. 11-S/22 of 2017 and decide the same accordingly. While passing aforesaid order, this Court observed that since case stands registered under Section 29 of the Act ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 3 against the bail petitioner, trial court would consider his case accordingly. Pursuant to aforesaid order passed by this Court, though petitioner had filed fresh bail application but that was .
not pressed and as such, was disposed of accordingly.
Subsequently, on 1.3.2018, present bail petitioner again filed bail application before learned Special Judge, Solan, who vide order dated 3.4.2018, rejected the same. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for grant of regular bail.
On 27.4.2018, when ASI Krishna from Police Station, Sadar, Solan, had come present alongwith record, Mr. R.K. Bawa, Senior Advocate duly assisted by Mr. Somender Chandel, Advocate, while inviting attention of this Court to the statements having been made by prosecution witnesses during trial, especially independent witnesses associated by police at the time of recovery i.e. PW-1 Rajesh Thakur and PW-2 Rajesh Verma, strenuously argued that no case, if any, is made out against the present bail petitioner as such, he deserves to be enlarged on bail. This Court, having heard Mr. Bawa, learned Senior Advocate and perused material placed on record in this regard, afforded time to the State to ascertain the correctness of the certified copies of the statements of prosecution witnesses placed on record by petitioner.
::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 44. Today, during the proceedings of the case, Mr. Dinesh Thakur, learned Additional Advocate General, fairly admitted that the copies of statements placed on record by the .
petitioner are genuine and strictly in conformity with the statements made by these prosecution witnesses before the Court. Otherwise also, copies of statements placed on record are duly certified by the Copying Agency.
5. Mr. R.K. Bawa, learned Senior Advocate vehemently argued that since recovery in the instant case came to be made from the exclusive possession of the co-accused namely Kapil, no case, if any, is made out against bail petitioner, who was admittedly sitting in the rear seat of the vehicle at the time of recovery. He further contended that case under Section 29 of the Act ibid stands registered against the bail petitioner and as such, rigours of Section 37 of the Act are not attracted in his case. Mr. Bawa, learned Senior Advocate further contended that though it is quite apparent from the record that the contraband was not recovered from the conscious possession of the petitioner, but otherwise also, evidence adduced on record by the prosecution, nowhere suggests involvement, if any, of the petitioner, rather, none of the prosecution witnesses examined till date has supported the story of the prosecution with regard to recovery, if any, made from the vehicle, in which bail ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 5 petitioner was sitting. While specifically inviting attention of this Court to the statements of PW-1 and PW-2, who were associated at the time of recovery by the police, Mr. Bawa, .
learned Senior Advocate, vehemently argued that both of them were declared hostile and cross-examination conducted upon these witnesses nowhere suggests that the prosecution was able to extract anything contrary to what they stated in their examination-in-chief, as such, story put forth by the prosecution deserves to be rejected outrightly being concocted one. While referring to the statement of PW-3 HHC Kanshi Ram, Mr. Bawa contended that he was not able to disclose the exact date and time of the recovery, if any, made by the police and as such, if his statement is read in conjunction with the statements of PW-1 and PW-2, it creates serious doubt with regard to correctness of the story put forth by the prosecution.
Mr. Bawa further contended that remaining witnesses i.e. PW-4, PW-5 and PW-6, who have been examined, have also not supported the case of the prosecution. Mr. Bawa fairly submitted that five witnesses are yet to be examined but their statements may not be relevant as far as recovery, if any, made by the police from the vehicle is concerned. He further contended that since two independent witnesses associated at the time of recovery, have not supported the prosecution case, ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 6 bail application deserves to be allowed. Mr. Bawa, further brought to the notice of this Court that bail petitioner is not in good health condition, rather, taking note of serious health .
condition of the bail petitioner, Jail authorities admitted him in IGMC for treatment. He further stated that as per medical documents available on record, bail petitioner is to undergo bye-pass surgery on 2.5.2018, and as such, it may not be proper to let him incarcerate in jail for indefinite period. Mr. Bawa while making this Court to peruse the statements adduced on record till date by the prosecution, made a serous attempt to persuade this Court to agree with his contention that the chances of conviction in the instant case are very bleak and remote, as such, bail petitioner, who has already suffered for more than one and a half years, needs to be enlarged on bail.
He further contended that since all the material prosecution witnesses, save and except, official witnesses have been examined, no prejudice would be caused to the prosecution in case, bail petitioner is enlarged on bail, because there is no possibility of petitioner's hampering/influencing official witnesses.
6. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly admitting the factum with regard to illness of the bail petitioner, contended that the bail petitioner is being ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 7 taken care in the hospital and an amount of Rs. 1.50 Lakh stands sanctioned for his surgery. He further stated that since the bail petitioner is already in hospital and he is to be .
operated, there is no force in the arguments of Mr. Bawa, learned Senior Advocate that in the event of petitioner's being not released on bail, his health would be adversely affected.
While refuting the submissions made by the learned Senior Advocate that none of the witnesses of recovery has supported the prosecution case, Mr. Thakur contended that true it is that both the witnesses of recovery have been declared hostile but if their cross-examination is read in its entirety, it corroborates the version put forth by the police that on the alleged date of incident, bail petitioner was traveling in the vehicle wherein, contraband was recovered. He further contended that both the witnesses of recovery i.e. PW-1 and PW-2 admitted their signatures on the memos, as such, denial, if any, on their part with regard to recovery made in their presence is of no consequence. Mr. Thakur further contended that still five prosecution witnesses are to be examined and as such, it can not be said that chances of conviction are remote and bleak, rather, prosecution with the material at hand, shall be able to prove beyond reasonable doubt that bail petitioner was involved in the commission of offences punishable under Sections 20 ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 8 and 29 of the Act ibid. Lastly, Mr. Thakur, contended that in the event of petitioner's being enlarged on bail, there is every likelihood of his influencing the remaining witnesses, as such, it .
may not be in the interest of justice to enlarge the bail petitioner on bail.
7. I have heard the learned counsel for the parties and gone through the record carefully.
8. Before adverting to the correctness of the submissions made by the learned senior counsel representing the bail petitioner vis-à-vis evidence adduced on record by prosecution till date, it may be noticed that the bail petitioner had approached this Court for grant of bail in May, 2017, as has been noticed herein above, wherein this Court taking note of the fact that contraband came to be recovered from exclusive possession of co-accused Kapil, had directed the court below to consider bail application of the bail petitioner taking into account the fact that case against bail petitioner stands registered under Section 29 of the Act ibid.
9. Today, during the proceedings of the case, Mr. Bawa, learned senior counsel strenuously argued that present bail petition has been filed in the changed circumstances because by now, thirteen witnesses have been examined and nothing has emerged against the bail petitioner, as such, bail petitioner, ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 9 who is in fact under treatment at IGMC Shimla, needs to be enlarged on bail.
10. Having perused the record/status report, this Court .
finds force in the arguments of Mr. R.K. Bawa, learned senior counsel that investigating agency/police party had prior information with regard to contraband being taken in the vehicle in question and at the time of constituting the raiding party, they failed to associate independent witnesses to prove recovery, if any, against the bail petitioner and other co-
accused. In the case at hand, two witnesses of recovery i.e. PW-
1 and PW-2 came to be associated at the time of recovery because both the witnesses have stated that they after having seen gathering at Saproon, went to the spot, where they were associated as recovery witnesses by the investigating agency. It is not in dispute that both the aforesaid witnesses have been declared hostile because they failed to support the version put forth by the prosecution. No doubt, these witnesses in their cross-examination have admitted that they had signed the memo of recovery but if their statements are read in their entirety, same suggest that they were made to sign in the Police Station and not on the spot. Otherwise also, though PW-1 admitted that seal after use was handed over to him, but in his cross-examination he stated that the seal was handed over to ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 10 him today, before recording of the statement in the Court. From the bare perusal of depositions made by both these witnesses, it is clear that they have not supported the prosecution case with .
regard to recovery effected on the date of alleged incident.
11. Similarly, PW-3 HHC Kanshi Ram, who is an official witness has not been able to point out specific date and time with regard to recovery made at the time of alleged incident. There are other discrepancies with regard to r to mentioning of recovery in the Malkhana register. PW-4 ASI Rakesh Guleria and PW-5 Constable Pawan are not directly related to recovery rather, PW-4 is the person who brought Rukka Ext. R-3 issued vide endorsement Ext. PW-4/A. PW-5 Constable Pawan is witness of case property, who stated that on 28.12.2016, MHC Malkhana Kanshi Ram handed over a sealed parcel sealed with three seal impressions of seal "A" and "T"
each, NCB form in triplicate, seizure memo, copy of FIR and RC.
This witness stated that he deposited the case property with FSL Junga on the same date. PW-6 Dy.SP Anil Sharma is witness with regard to handing over of Pullinda sealed with three seal impressions of seal "A". PW-7 Sanjeet Singh Criminal Ahlmad stated that order dated 27.12.2016, Ext. PW-7/A and certificate Ext. PW-7/B were signed and issued by Shri Sachin Raghu, CJM Solan and he recognized his signatures, since he ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 11 was working with him. PW-8 Constable Rakesh Kumar is again a formal witness, who stated that he had gone to Junga in connection with some official work. PW-9 HC Devinder Kumar, .
who was working with Dy.SP Solan, stated that on 26.12.2016, Constable Amit handed over a report under Section 42 (2) of the Act ibid in the office of Dy.SP Solan and the then Dy.SP, after endorsement, handed over the report to him. PW-10 Amit Sharma, who was posted as Dy.SP Leave Reserve, Solan, also corroborated the version put forth by PW-9 that on 28.12.2016, Constable Amit brought report under Section 42 (2) of the Act ibid. Lastly, PW-11 Constable Ashwani, has stated that on 26.12.2016, at about 11 am, ASI Ashwani Thakur, HHC Ajay Kumar, HHC Balbeer Singh, HC Rajesh Kanwar and Constable Amit proceeded to Saproon Chowk in connection with patrolling duty in two vehicles. This witness has further stated that at about 11.30 am, Ashwani Thakur received secret information that a vehicle bearing last four digits as 5936 was coming from Solan Bazaar proceeding to Chandigarh, wherein cannabis was being transported. He categorically admitted in his cross-
examination that when vehicle was intercepted, at that time, independent witnesses were available and no independent witness was associated at the time of constituting raiding party.
He, in his cross-examination also stated that he does not know ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 12 from where exhibit P-11 was taken into possession and he could not state at what time, seizure memo was prepared nor he could state at what time, NCB forms were prepared. He also .
stated that bag was checked within 10 minutes after the vehicle was intercepted. He could not state at what time, seizure memo exhibit PW-1/A was prepared.
12. PW-12 LC Archana No. 194 brought the summoned record.
13. Though aforesaid statements having been made by all these witnesses are to be perused, considered and examined by the learned trial Court at the time of delivering final verdict, but this Court having perused statements made by PW-1 and PW-2, who are material prosecution witnesses, is inclined to agree with Mr. R.K. Bawa, learned senior counsel that nothing strong has emerged against the bail petitioner, rather, recovery, if any, made by prosecution is shrouded by suspicion. No doubt, as on date, five witnesses remain to be examined as per record made available to this Court, but out of five witnesses, two witnesses are witnesses of spot, one is Investigating Officer himself, whereas two other witnesses are formal in nature i.e. Constable Amit Kumar and Balbeer Singh, who are witnesses to compliance of Sections 42 and 57 of the Act ibid, whereas Rajesh Kumar HC is witness of spot.
::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 1314. Investigating Officer Ashwani Thakur is yet to be examined but since all the remaining witnesses are police officials, this Court sees no force in the argument of Mr. Dinesh .
Thakur, learned Additional Advocate General that in the event of petitioner being enlarged on bail, he may influence these witnesses.
15. As has been discussed herein above, only two independent witnesses have been associated in the instant case to prove recovery from the vehicle, i.e. PW-1 and PW-2, and further as has been noticed herein above, none of these has supported the prosecution case. No doubt, though PW-1 and PW-2 have admitted their signatures on the recovery memo and PW-1 in his statement has also admitted that seal was handed over to him, but, as has been discussed above, if cross-
examination conducted on these witnesses is read in its entirety, it creates suspicion /doubt with regard to correctness of the story put forth by prosecution.
16. Hon'ble Apex Court in Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294, while dealing with case registered under Maharashtra Control of Organised Crime Act, 1999 (MCOCA), which also contains stringent provisions, rather, Section 21 of the aforesaid Act is pari materia to that of Section 37 of the Narcotic Drugs & ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 14 Psychotropic Substances Act, has categorically held that if the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately .
convicted, an order granting bail may be passed. It has been held as under:
"38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 15 not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a .
situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision."
17. In Ram Narayan v. State 121 (2005) DLT 166, High Court of Delhi has held as under:
"5. I have considered the arguments advanced by the learned Counsel for the petitioner as well as the learned Counsel for the State. Insofar as the applicability of Section 37 of the NDPS Act is concerned, without going into the question of percentage of the Heroin found in the substance, it may be assumed that the same is applicable in this case. However, the fact that Section 37 of the NDPS act applies to a particular case does not mean that the accused in such a case would not be entitled to bail per se. What is necessary for the Court examining the question of grant of bail where Section 37 applies is that the Court should be satisfied having regard to the material available on record that there are sufficient grounds that the petitioner may not be convicted. If the probabilities are that the petitioner may not be convicted, then the Court can grant bail subject to the further condition being satisfied that the petitioner is not likely to commit any offence while on bail. However, ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 16 if the Court is satisfied looking at the probabilities of the case that the petitioner is likely to be convicted, then the question of grant of bail would not arise.
.
This is what has been held by the Supreme Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, 2005 AIR SCW 2215 while considering the provisions of Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999. The provisions of Section 21(4) of the latter act are in pari materia with the provisions of Section 37 of the NDPS Act. Para 49 of the said Supreme Court decision reads as under:
"49. We are furthermore of the opinion that r the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under section 279 of the indian penal code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 17 would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an .
organised crime either directly or indirectly.
The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may r not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision."
6. In the backdrop of the foregoing principles, I find that the differences in the test results of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner. This is not a definite finding and that would come at the time of trial. However, on the basis of the materials brought on record, there is every likelihood that the petitioner may not be convicted in this case. It is further to be ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 18 examined as to whether there is any likelihood of the petitioner committing any offence while on bail. In this regard, the Supreme Court in the aforesaid .
decision, held that the satisfaction of the Court as regards the likelihood of not committing any offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. It further held (in paragraph 55 of the said report) that since it is difficult to predict the future conduct of the accused, the Court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence. The present petitioner has no criminal antecedents and nothing has been indicated to show that the petitioner has a propensity to commit any offence under the NDPS Act.
7. It is, therefore, clear that the mandatory conditions for grant of bail under Section 37 of the NDPS Act (as observed in the case of Union of India v. Ram Samujh, 1999 (3) C.C Cases (SC) 22, para 8) stand satisfied. Accordingly, I direct that the petitioner be released on bail on furnishing a personal bond in the sum of Rs. 1 lakh with one surety of the like amount to the satisfaction of the concerned Court. It, however, goes without saying that the findings recorded by this Court are only tentative in nature and the trial Court is free to ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 19 decide the case on the basis of evidence adduced at the trial without in any manner being prejudiced by any observations made in this order."
.
18. In this regard, reliance is also placed upon judgment rendered by High Court of Delhi in Rahul Saini v. The State 141 (2007) DLT 252.
19. Bare perusal of Section 37 of the Act ibid, suggests that bar is not absolute, rather, Section 37 provides that in case court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail, it can grant bail subject to conditions that fair opportunity would be granted to the Public Prosecutor to oppose application for such release.
Section 37 of the Act ibid is reproduced hereinbelow:
1[37. Offences to be cognizable and non-bailable.--
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless--::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 20
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and .
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]
20. Otherwise also, as has been noticed herein above, in the judgments passed by Hon'ble Apex Court and High Court of Delhi, a person booked under Narcotic Drugs & Psychotropic Substances Act, can be enlarged on bail, if court having perused material, comes to the conclusion that probability of conviction is bleak and remote. Another condition is that petitioner is not likely to commit the offence while on bail.
21. Hon'ble Apex Court in Ranjitsing Brahmajeetsing Sharma (supra) has held that satisfaction of the Court as regards likelihood of accused not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 21
22. Having carefully perused the statements of prosecution witnesses made till date, this Court purposely restrains itself from expressing any opinion with regard to .
culpability, if any, of the bail petitioner, because prosecution, with the examination of remaining two spot witnesses may be able to prove recovery of contraband but, at this stage, this Court having perused exposition of law having been rendered by Hon'ble Apex Court and High Court of Delhi, sees no reason to grant of bail.
r to deny the prayer having been made by the bail petitioner for
23. Leaving everything aside, it is not in dispute that bail petitioner is suffering from serious heart ailment, as has been fairly admitted by Mr. Dinesh Thakur, learned Additional Advocate General. Today, during the proceedings of the case, Mr. Dinesh Thakur, learned Additional Advocate General made available information received from Jail Superintendent, Solan.
Otherwise also, perusal of status report clearly suggests that bail petitioner is to undergo bye-pass surgery on priority basis.
Since petitioner is to undergo bye-pass surgery, this Court can not lose sight of the fact that he requires lot of post-operation care after surgery, which can only be provided by his family members that too at home and not in jail. This Court has been further informed that the remaining witnesses are to be ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 22 examined on 28.6.2018, by which date, there is no possibility of petitioner recovering from his ailment and as such, there appears to be no force in the argument of Mr. Dinesh Thakur, .
learned Additional Advocate General, that in the event of petitioner being enlarged on bail, he may influence the witnesses and tamper with the prosecution evidence.
24. Mr. Bawa learned senior counsel on instructions informed that petitioner is to undergo bye-pass surgery tomorrow i.e. 2.5.2018, as such, this Court taking note of the health condition of bail petitioner 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 facts to be borne in mind, while considering prayer for grant during pendency of trial.
25. 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 guilt has not been 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 ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 23 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."
26. 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 Investigation (2012)1 Supreme Court Cases 49; has been held as under:-
::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 24"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 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 ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 25 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."
.
27. 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 ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 26 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."
28. 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.
29. 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:
::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 27(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.
30. In view of above, present bail petition is allowed.
Petitioner is ordered to be enlarged on bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- (Rs. Five Lakh) with two local sureties in the like amount, to the satisfaction of the learned trial Court, besides 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 ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP 28
(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.
31. It is clarified that if the petitioner misuses the liberty .
or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
32. 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 instant petition alone.
The petition stand accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge May 1, 2018 (vikrant) ::: Downloaded on - 04/05/2018 22:53:11 :::HCHP