Himachal Pradesh High Court
Cr. Mp (M) No.2831/2022 vs State Of H.P on 10 January, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) Nos.2831 and 2832 of 2022 Date of decision: 10th January, 2023.
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1. Cr. MP (M) No.2831/2022 Kuldeep Singh .....Petitioner.
Versus
State of H.P .....Respondent.
2. Cr. MP (M) No.2832/2022
Guman Singh .....Petitioner.
Versus
State of H.P. .....Respondent.
Coram
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 For the petitioner(s) : Mr. Deepak Kaushal, Sr. Advocate with Mr. Abhishek Verma, Advocate.
For the respondent : Mr. B.C. Verma and Mr. Rajan Kahol, Addl.
AGs.
ASI Hitender Singh No.255, P.S. Paonta Sahib, alongwith the records.
Sandeep Sharma, Judge (oral).
Bail petitioners, namely, Kuldeep Singh and Guman Singh, who are behind the bars since 3.11.2021, have approached this Court in the instant proceedings filed under Section 439 Cr. P.C, for grant of regular bail in case FIR No.185 of 2021, dated 3.11.2021, under Sections 22, 29, 61, 85 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station, Paonta Sahib, District Sirmaur, H.P.
2. Pursuant to order dated 28.12.2022, respondent-State has filed status report and ASI Hitender Singh No.255, P.S. Paonta Sahib, has come present alongwith the record. Record perused and returned. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ::: Downloaded on - 11/01/2023 20:32:07 :::CIS 2
3. Close scrutiny of the status report/record reveals that on 3.11.2021, police party present at Behral check post, stopped vehicle bearing registration No. HP-18-A-8111 (Alto car) coming from Yamuna .
Nagar side for checking. Since, driver of the vehicle as well as occupants after having seen the police got perplexed and started making excuses for not showing the documents, police deemed it necessary to cause their personal search as well as vehicle. Allegedly, police after having associated independent witnesses, conducted search of the vehicle as well as occupants and allegedly recovered 1336 capsules containing prohibited drugs i.e. "Spasmo Proxyvon". Since, no plausible explanation ever came to be rendered on record on behalf of occupants of the car qua possession of aforesaid commercial quantity of contraband, police after having completed necessary codal formalities, lodged the FIR, as detailed hereinabove, on 3.11.2021 and since then bail petitioners as well as other are behind the bars, but the co-accused Kuldeep Singh, already stand enlarged n bail vide order dated 21.12.2022, passed by this Court in Cr. MP (M) No.2662/2022. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioners, they have approached this Court in the instant proceedings, for grant of regular bail.
4. While fairly admitting factum with regard to filing of Challan in the competent court of law, Mr. B.C. Verma, learned Additional Advocate General, submits that though nothing remains to be recovered from the bail petitioners, but keeping in view gravity of the offence alleged to have been committed by them, they do not deserve any leniency. Mr. Verma, while making this Court to peruse the record, submits that there is overwhelming evidence suggestive of the fact that bail petitioners alongwith other occupants of the car indulges in illegal trade of narcotics and as such, it may not be in the interest of justice to enlarge them on ::: Downloaded on - 11/01/2023 20:32:07 :::CIS 3 bail because in that event, they may not only flee from justice, but may indulge in such activities again, as such, their prayer for grant of bail deserves outright rejection. He also submits that since commercial .
quantity of contraband came to be recovered from the conscious possession of the bail petitioners, rigour of Section 37 are attracted.
5. Having heard learned counsel for the parties and perused material available on record, this Court finds that on 3.11.2021, police party allegedly recovered commercial quantity of prohibited drugs from the car bearing registration No. HP-18-A8111 being driven by the co- accused Kuldeep Singh in the presence of independent witnesses and as such, this court finds it difficult to agree with learned Senior counsel representing the petitioners that bail petitioners as well as driver of the car have been falsely implicated. Record reveals that neither petitioners or driver were in trade of pharmaceutical, rather they brought consignment of commercial quantity of contraband for their own use from Yamuna Nagar (Haryana). During investigation, co-accused Kuldeep Singh disclosed to the police that he as well as other friends i.e. bail petitioners who were sitting in the car at that relevant time, are habitual of using prohibited drugs and as such, had collected 3000/-rupees for purchasing capsules. Though, petitioners as well as other occupants claimed before the police that they have purchased this quantity of contraband from some unknown person, but they were unable to identify him. Since prohibited drugs i.e. "Tramadol" came to be found in the capsules allegedly recovered from the conscious possession of the bail petitioners as well as other occupants, they have been rightly booked under various provisions of the Act. However, having taken note of the fact that bail petitioners are behind bars for more than ::: Downloaded on - 11/01/2023 20:32:07 :::CIS 4 one year and till date prosecution evidence has not commenced, this Court is persuaded to agree with Mr. Deepak Kaushal, learned Senior counsel representing the bail petitioners that bail petitioners are entitled .
to bail on the ground of delay in trial.
6. No doubt, on account of recovery of commercial quantity, rigour of Section 37 are attracted but bare perusal of provisions contained under Section 37, nowhere suggests that Court cannot proceed to grant bail in the cases involving commercial quantity rather in such cases, court before granting bail, if any, is required to afford due opportunity of hearing to public prosecutor, which in the case at hand has been already afforded to the respondent-Sate, who by way of reply has opposed the bail on the ground that rigour of Section 37 of the Act applies to the case
7. No doubt, in the case at hand commercial quantity of contraband came to be recovered from the vehicle, which at the relevant time was occupied by three peoples, but such recovery, if any, is yet to be established on record by the prosecution by leading cogent and convincing evidence. Since there is nothing on record suggestive of the fact that bail petitioners had been indulging in these activities in past, it would be too premature at this stage to conclude that aforesaid quantity of contraband was being transported by the bail petitioners and his friends for further selling the same in the market or to other drugs addicts, rather investigation reveals that all the accused including present bail petitioners have become drug addict and had been using such capsules in past also. Since bail petitioners have become drug addict, no fruitful purpose would be served by keeping them behind the bars for indefinite period, rather they are required to be taken to some good rehabilitation centre, so that they are brought back to main stream at the earliest.
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8. Leaving everything aside, this Court finds that bail petitioners are behind the bars for more than one year, but till date prosecution has been not able to commence the evidence. Since none of the prosecution .
witnesses has been examined, this Court has reasons to presume that considerable time is likely to be consumed in conclusion of the trial and in that event it may not be in the interest of justice to let the bail petitioners remain behind the bars for indefinite period, as it would amount to pre- trial conviction of the petitioner.
9. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.
10. Placing reliance upon aforesaid judgments, a Coordinate Bench of this court in CrMP(M) No. 1328 of 2022 titled Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022, also ordered for enlargement of an accused, who was allegedly apprehended carrying commercial quantity of Tramadol, on the ground of delay in conclusion of trial.
11. Apart from above judgment, Co-ordinate Bench of this court while granting bail vide order dated 22.3.2021 in Cr.MP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal Pradesh , also placed reliance upon a judgment delivered by a three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit Singh Moni v. State of Himachal Pradesh, ::: Downloaded on - 11/01/2023 20:32:07 :::CIS 6 decided on 12.10.2020, wherein petitioner was allegedly found in possession of 3285 grams of charas from a vehicle, wherein four other persons were sitting.
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12. Learned Senior Counsel appearing for the petitioners, to substantiate their plea for enlarging the petitioners on bail, has referred to order dated 12.10.20220 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh , whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.
13. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail.
14. The learned Senior Counsel appearing for the petitioners submits that in Mohit Aggarwal, huge commercial quantity of 20 kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas, in the present case, the recovered quantity is little more than the commercial quantity.
15. In similar circumstances, in Cr.MP(M) No. 1328 of 2022, titled Roop Singh v. State of Himachal Pradesh , decided on 6th September, 2022, another Co-ordinate Bench of this Court, having taken note of inordinate delay in conclusion of trial, ordered enlargement on bail of the person, who was apprehended with 1.996 kg of charas. ::: Downloaded on - 11/01/2023 20:32:07 :::CIS 7
16. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Apprehension expressed by learned .
Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.
17. 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/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
18. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
19. In Manoranjana Singh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the 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, ::: Downloaded on - 11/01/2023 20:32:07 :::CIS 8 character of the accused, circumstances which are peculiar to the accused involved in that crime.
20. The Apex Court in Prasanta Kumar Sarkar versus Ashis .
Chatterjee and another (2010) 14 SCC 496 , has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
21. In view of above, bail petitioners have carved out a case for himself, as such, present petitions are allowed. Bail petitioners are ordered to be enlarged on bail, subject to their furnishing bail bonds in the sum of Rs.2.00 Lakh each with two local sureties surety each in the like amount each, to the satisfaction of the learned trial Court, besides the following conditions:
(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They 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
(d) They shall not leave the territory of India without the prior permission of the Court.
22. It is clarified that if the petitioners misuses the liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
23. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the ::: Downloaded on - 11/01/2023 20:32:07 :::CIS 9 disposal of these petitions alone. The petitions stand accordingly disposed of.
24. A downloaded copy of this order shall be accepted by the .
learned trial Court, while accepting the bail bonds from the petitioners and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.
(Sandeep Sharma) Judge 10th January, 2023 (CS) ::: Downloaded on - 11/01/2023 20:32:07 :::CIS