Himachal Pradesh High Court
Daulat Ram vs State Of Himachal Pradesh on 3 August, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.152 of 2018 a/w .
Cr.MP(M). No.1004 of 2018
Date of Decision No.3.8.2018
Cr. Revision No.152 of 2018
Daulat Ram .....Petitioner.
Versus
State of Himachal Pradesh .... Respondent.
Cr.MP(M). No.1004 of 2018
Daulat Ram .....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. N.S.Chandel, Advocate.
For the Respondent: Mr. S.C.Sharma, Additional Advocate General, with Mr. Amit Kumar Dhumal, Deputy Advocate General.
Sandeep Sharma, Judge (oral):
By way of instant Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, challenge has been laid to impugned 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 2
order, dated 28.10.2017, passed by learned Special JudgeII, Kullu, District Kullu,H.P., whereby petitioner ( for short .
'Accused') came to be charged under Sections 20 & 21 of the Narcotic Psychotropic Substances Act, Section 14 of the Registration of Foreigner Rules of 1992 and Section 5 of the Foreigners Act, 1939.
2. Briefly stated facts, as emerge from the record are that on 16.02.2017, police on the basis of the secret information raided the house/building owned by the present petitioner, namely Sh. Daulat Ram, situate at village, Naggar, District Kullu, H.P., wherein coaccused namely, Visvambhar Isiah Streisand was found to be residing. Allegedly, huge commercial quantity of 120.772 Kgs Ganja with plastic bags, nine litres Hashish oil, 15 syringes of 20 ML each filled with Hashish oil total weight 626 grams, 36 syringes of 10 ML each filled with Hashish oil total weighing 670 grams, one electric cooker/pot containing Hashish oil in solid form and total weight alongwith Hashish oil weighing 2.792 grams came to be recovered from the conscious possession of coaccused Visvambhar Isiah Streisand. It also emerge from the record ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 3 that at the time of search of the aforesaid house/premises, investigating agency associated the present petitioner being .
owner of the house as well as other independent witnesses and thereafter arrested coaccused Visvambhar Isiah Streisand on 17.2.2017 and since than he is behind the bars.
3. During the investigation, it also emerged that petitioneraccused had rented the premises situated in secluded place surrounded by orchard at village Naggar to co accused Visvambhar Isiah Streisand on the yearly rent of Rs.95,000/. Petitioneraccused with a view to substantiate aforesaid factum with regard to renting out of premises by him to coaccused, also placed on record rent deed, which is not in dispute, rather has been made part of the record. During investigation, coaccused, named hereinabove, disclosed to the police while he was in remand that petitioneraccused had rented accommodation on yearly rent of Rs.95000/ and he oftenly used to visit his premises. On the basis of the aforesaid statement made by the coaccused, police interrogated the present petitioneraccused and ultimately arrested him on 22.3.2017 on the allegations that factum with regard to ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 4 illegal/unauthorized use of premises for preparation and manufacture of psychotropic substance i.e. Hashis, Ganja, .
Hashis oil and cannabis by the coaccused was in his knowledge. After completion of the investigation, police filed challan under Section 173 of Cr.P.C, in the competent Court of law, perusal whereof, suggest that police on the basis of the investigation arrived at a conclusion that petitioneraccused had knowledge with regard to illegal activities of coaccused, who used to reside in the rented premises of the petitioner accused and accordingly, booked/charged him for having committed the offence punishable under Section 25 of the Narcotic Psychotropic Substances Act( for short 'Act'), Section 14 of Registration of Foreigner Rules of 1992, and Section 5 of the Registration of Foreigners Act, 1939.
4. On 28.10.2017, learned Special JudgeII, Kullu having perused the final report under Section 173 Cr.P.C as well as documents annexed therewith, charged coaccused Visvambhar Isiah Streisand under Section 20 & 21 of the Narcotic Psychotropic Substances Act, and Section 40 of the Himachal Pradesh Excise Act, 2011, whereas present ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 5 petitioner came to be charged under Sections 20 & 21 of the Narcotic Psychotropic Substances Act, Section 14 of the .
Registration of Foreigner Rules of 1992 and Section 5 of the Registration of Foreigners Act, 1939.
5 In the aforesaid background, petitioner has approached this Court by way of instant revision petition, praying therein to quash the charge framed against him being unsustainable.
6. Mr. N.S.Chandel, learned counsel representing the petitioner, while referring to the impugned order of charge framed by learned Special JudgeII, Kullu, vehemently argued that same is not sustainable in the eyes of law as the same is not based upon the proper appreciation of the material adduced on record by the Investigating Agency. Mr. Chandel, further argued that bare perusal of impugned order, dated 28.10.2017, clearly suggests that learned court below while arriving at a conclusion that primafacie case under Sections 20 & 21 of the Narcotic Psychotropic Substances Act, and Section 14 of the Registration of Foreigner Rules of 1992 and Foreigners Act, 1939 is made out against the present ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 6 petitioneraccused not bothered at all to go through the material collected on record by the investigating agency.
.
7. Per contra, Mr. S.C.Sharma, learned Additional Advocate General, while supporting the impugned order, dated 28.10.2017, contended that there is no illegality and infirmity, rather same is based upon proper appreciation of material adduced on record by the investigating agency. He further argued that it is well settled that at the time of framing charge court is not required to sift the entire evidence, rather needs to arrive a conclusion whether primafacie case, if any, is made out against the accused or not. However, Mr. S.C.Sharma, learned Additional Advocate General fairly admitted that as per the documentary evidence available on record there is no direct evidence save and except statement of coaccused that present petitioner being owner of the premises in question used to visit his house frequently, suggestive of the fact that factum with regard to illegal manufacturing and preparation of prohibited drugs by coaccused was in the know of the accused, but he vehemently argued that it has specifically come in the statement of coaccused during the remand that ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 7 petitioner, who had rented him his house, use to visit his house oftenly and he knew that coaccused used to prepare the .
medicine for cancer.
8. I have heard learned counsel for the parties and gone through the record carefully.
9. Having carefully perused the final report submitted by the Investigating Agency under Section 173 Cr.P.C and the material placed therewith visavis impugned order, dated 28.10.2017, this Court is of the definite view that court below while framing charge has not bothered at all to examine the material placed before it while inferring prima facie case, if any, against the accused. Learned Special Judge while framing charge has very conveniently concluded that having heard the parties and perused the record a primafacie case under Section 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act is made out and as such, they are charged with Section 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, apart from other provisions of law as stands mentioned in the instant order.
::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 810. There cannot be any quarrel with the proposition of law that at the time of framing of charge, Court is not .
required to sift the entire evidence, as repeatedly held by Hon'ble Apex Court, but to arrive at a conclusion that prima facie case is made out, Court is under obligation to atleast peruse the material placed before it by investigating agency and thereafter records its findings on what basis it has come to the conclusion that primafacie case is made out against person proposed to be charged. Recently, this Court in case titled as Varun Bhardwaj versus State of H.P (Latest HLJ 2017 (HP) 707, has elaborately dealt with the aforesaid aspect of the matter taking note of various pronouncements made by the Hon'ble Apex Court and has concluded that at the initial stage of framing of charge, the court is concerned not with proof but with the strong suspicion whether the accused has committed an offence, which if put to trial, could prove him guilty. In the aforesaid judgment, it has been specifically held that at the time of framing of charge, court should come to the conclusion that primafacie case, if any, exists to the satisfaction of the court against the accused.
::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 911. The Hon'ble Apex Court in case titled as L.Krishna Reddy V. State by Station House officer and .
Ors, (2004) SCC 401, which has been taken note of in the judgment passed by this Case in Varun Bhardwaj case (supra), has held that though Courts need not undertake an elaborate enquiry while sifting and weighing the material but court needs to consider whether evidenciary material on record, if generally accepted would reasonably connect the accused with the crime or not. In the aforesaid judgment, which has been also taken note of by this Court in Varun Bhardwaj case supra, has further held that once a case is presented to the Court by the prosecution, it is the duty of the Court to sift through the material to ascertain whether prima facie case has been established against the accused or not?.
Hon'ble Apex Court in L. Krishna Reddy's case supra has specifically held that while framing charge under Section 228 of the Cr.P.C, court must keep in mind the interest of the person arraigned as an accused, who may be put to the ordeals of trial on the basis of flippant and vague evidence.
::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 1012. Having carefully perused the impugned, order dated 28.10.2017 juxtaposing final report under Section 173 .
Cr.P.C, this Court has every reason to conclude and hold that learned court below merely in stereotype manner proceeded to frame charge even without looking into the conclusion drawn in the final report submitted by the police under Section 173 Cr.P.C and the material annexed therewith. Though, having perused the record made available on record, this Court is not in agreement with the submissions made by learned Additional Advocate General that there is ample evidence available on record, suggestive of the fact that petitioner accused was in know of the fact that premises let out by him is/was being used for illegal manufacturing and preparation of prohibited drugs by the coaccused because admittedly at this stage, there is nothing on record save and except statement of coaccused to the effect that present petitioner being owner of the premises used to visit his premises oftenly, however, in view of the order proposed to be passed by this Court in the instant proceedings, it may not be appropriate of this Court to ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 11 record findings qua this aspect of the matter and as such, same is left to be considered and decided by the court below.
.
13. Interestingly, perusal of final report filed under Section 173 Cr.P.C, nowhere suggest that during investigation, police found involvement of present petitioner accused as far as commission of offence punishable under Section 20 and 21 of the Act, rather police arrived at a conclusion that petitioner has committed offence punishable under Section 25 of the Act apart from Section 14 of the Registration of Foreigner Rules of 1992 and Section 5 of the Registration of Foreigners Act, 1939. But it is not understood on what basis trial Court proceeded to frame charge against the accused under Section 20 and 21 of the Act. No doubt, Court while considering the material placed before it alongwith report filed under Section 173 Cr.P.C, can frame charge under other sections and other provisions of law, which may not have been included by the investigating agency, but in that regard, it is obligatory on the part of the judge concerned to state/assign reason that on what basis he/she has arrived at conclusion that person concerned is required to be ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 12 charged under other sections, which are otherwise not included in the final report. But in the instant case, impugned .
order dated 28.10.2017, nowhere reveals grounds/reasons, if any, assigned by the judge for charging the present petitioner accused under Section 20 and 21 of the NDPS Act. It would be appropriate to reproduce impugned order dated 28.10.2017 herein: " Heard and record perused. A primafacie case under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act and Section 40 of the H.P. Excise Act is made against the accused Visvambhar Isiah and Sections 20 an d21 of the NDPS Act Section 14 of the Registration of Foreigners Rules of 1992 and Foreigners Act, 1939 is made out against the accused Daulat Ram, Ami Chand. Accordingly, charges put to them to which they pleaded not guilty and claimed to be tried.
Let, Pws cited at serial No. 1,2, 4 and 5 be summoned for 18.01.2018 and Pws at Sr. No.6 to 9 be summoned for 19.1.2018. the custody of both the accused is extended till 18.1.2018, on which date they be produced before this Court at 10:00 am sharp."
14. It would be also profitable to reproduce charge framed by the learned court below herein: "That on 16.2.2017 at about 4:30 PM at place Naggar, District Kullu, HP, you accused allowed your premises to be used for commission of an offence by your coaccused Visvambhar Isiah a foreign National, who was found in exclusive and conscious possession of ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 13 120.772 Kgg Ganja/ contraband with plastic bags, nine litres Hashish oil, 15 syringes of 20 ML each filed with Hashish oil total weight 626 grams, 36 syringes of 10 ML each filled with .
Hashish oil total weight weighing 670 grams, one electric cooker/pot containing Hashish oil in soild form and total weight alongwith Hashish oil weighing 2.792 grams as per the proceedings conducted before the Magistrate under Section 52A of the NDPS Act and thereby committed offences punishable under Sections 20 and 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 and within my cognizance.
Secondly, on the aforesaid date, time and place you rented out your premises in favour of your coaccused without filling FromC under the provisions of Registration of Foreigners Rules 1939 and thereby committed an offence punishable under Section 14 of the Registration of Foreigner Rules of 1992 and Foreigners Act, 1939 and within my cognizance."
15. Close scrutiny of impugned order dated 28.10.2017 as well as charge, nowhere persuade this Court to agree with the contention of learned Additional Advocate General that learned court below while framing charge carefully examined the final report and material annexed therewith, rather, this Court at the cost of repetition wish to observe that court below in most casual and cavalier manner without going/looking into the material placed on record, proceeded to pass order dated 28.10.2017 and same being not based upon the proper ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 14 appreciation of material as well as final report filed under Section 173 Cr.P.C cannot be allowed to sustain.
.
Cr.MP(M) No.1004 of 201816. By way of instant application filed during the pendency of the present petition, prayer has been made on behalf of the applicant/petitioner for grant of bail during the pendency of trial, which is pending adjudication before the learned Special JudgeII, Kullu.
17. Having carefully perused the final report and the documents annexed therewith, primafacie, this Court is of the view that there is no evidence available on record save and except statement of coaccused, suggestive of the fact that petitioneraccused, who had rented his premises to coaccused on the yearly rent of Rs.95000/ was in know of the illegal activities of coaccused being carried out in his premises and as such, prayer made in the accompanying application filed under Section 439 of the Code of Criminal Procedure, for grant of bail deserves to be considered.
18. It is not the case of the prosecution that petitioner accused did not join the investigation, rather it clearly emerge ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 15 from the record that from the date of occurrence i.e. 16.2.2017 petitioner has been fully cooperating with the investigating .
agency. This court is fully conscious of the fact that rigour of Section 37 of the Act are attracted in the cases where the person/accused is charged for having committed offence punishable under section 20 and 21 and 25 of the Act and also for having possessed commercial quantity of contraband.
However,section 37 of the Act, provides that if court after having afforded opportunity to public prosecutor to oppose the application, is satisfied that there are reasonable grounds for believing that applicant is not guilty of such offence and he is not likely to commit any offence while on bail, can proceed to grant bail for having committed the offence under ND&PS Act.
19. At this stage, it would be profitable to reproduce Section 37 of the Act hereinbelow: " 37.Offences to be cognizable and nonbailable: (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 (offence under section 19 or section 24 or section 27A and also for offences involving commercial ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 16 quantity) shall be released on bail or on his own bond unless
(i) the Public prosecution 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 subsection (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. In the instant case, as has been discussed hereinabove, investigating agency in its final report filed under Section 173 Cr.P.C, has found present petitioner/ accused guilty of having committed offence punishable under Section 25 of the Act, whereas learned court below while framing charge has charged present petitioner/accused under Sections 20 and 21 of the Act, but no specific reason, whatsoever has been assigned in the order framing charge that on what basis/material court primafacie found accused having committed the offence punishable under Section 20 and ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 17 21 of the Act. In the earlier part of the judgment, this Court has categorically held that Court below ought to have disclosed .
grounds/reasons, if any, for charing petitioner/accused for having committed the offence punishable under Section 20 and 21 of the Act, especially when police had not found him involved in the commission of offence punishable under Sections 20 and 21 of the Act. This Court cannot loose sight of the fact that petitioneraccused is behind the bar since 23.3.2017 i.e.1 ½ years and in the peculiar facts and circumstances of the case, which have been discussed hereinabove in detail, this Court is convinced and satisfied after having heard learned counsel for the parties that petitioner deserves to be enlarged on bail during the pendency of the trial.
21. By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.
::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 1822. 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 categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion.
Hon'ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the judgment are reproduced 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 - 08/08/2018 22:59:00 :::HCHP 19 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 firsttime 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 - 08/08/2018 22:59:00 :::HCHP 20 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 ReInhuman Conditions in 1382 Prisons
23. 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.
24. 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:
::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 21(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.
25. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court and this Court, the present revision petition as well as bail application are allowed and impugned order dated 28.10.2017 passed by the court below is quashed and setaside, however, the matter is remanded back to the learned court below to consider the matter afresh in the light of the findings/observations returned/made in the instant judgment passed by this Court. Parties are directed to remain present before the learned court below on 30.8.2018, to enable it to consider the matter afresh as directed above. The order ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 22 passed in the bail application bearing Cr.MP(M) No.1004 of 2018 is subject to applicant's furnishing personal bond in the sum .
of Rs. 5,00,000/ (Rs. Five lakh) with one local surety in the like amount, to the satisfaction of the learned 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 temper 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.
26. It is clarified that if the petitioner misuses his 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.
27. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall ::: Downloaded on - 08/08/2018 22:59:00 :::HCHP 23 remain confined to the disposal of the revision petition as well as application alone.
.
28. Records of the case alongwith copy of judgment be also sent forthwith.
Pending applications, if any, are also disposed of.
Copy dasti.
3rd August, 2018
r to (Sandeep Sharma),
Judge
(shankar)
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