Himachal Pradesh High Court
Mukesh Kumar vs State Of Himachal Pradesh on 13 September, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M)No. 2144 of 2023
Date of Decision: 13.09.2023
.
_____________________________________________________________
Mukesh Kumar ......... Petitioner
Versus
State of Himachal Pradesh .......Respondent
of
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the petitioner:
rt Mr. Arjun Lal, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C.Verma, Additional Advocate Generals with Mr.
Mr. Ravi Chauhan, Deputy Advocate General.
_________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner, namely Mukesh Kumar, who is behind the bars for almost two years, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No.429 of 2021, dated 11.11.2021, under Section 8(C), 22-61-85 of the Narcotic Drugs & Psychotropic Substances Act, registered at police Station, Una, District Una, Himachal Pradesh
2. Respondent- State has filed status report and ASI Sanjeev Chandel, has come present alongwith the record. Record perused and returned.
::: Downloaded on - 14/09/2023 20:35:12 :::CIS 23. Close scrutiny of the status report as well as record made available to this Court reveals that on 10.11.2021, police after having .
received secret information that bail petitioner, who is a Chemist, indulges in illegal trade of narcotic, raided his shop namely, AAR M CURATIVES and allegedly recovered huge quantity of prohibited drugs namely, alprazolam tramadol. Since bail petitioner was unable to produce record with regard to of purchase and sale of aforesaid prohibited drugs, police after having completed necessary codal formalities, lodged the FIR, as detailed hereinabove against the bail petitioner and since then he is behind the bars.
rt Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail. Primarily, bail has been prayed on the ground of inordinate delay in conclusion of trial.
4. Mr. Arjun Lal, learned counsel representing the petitioner, vehemently contended that petitioner has been falsely implicated and as such, deserves to be enlarged on bail. He further states it is not in dispute that petitioner is a Chemist and at the time of alleged recovery was possessing valid licence under Drugs and Cosmetics Act, meaning thereby petitioner was otherwise competent/eligible to keep stock of drugs, as detailed hereinabove. Mr. Lal, further states that though it has been claimed on behalf of the investigating agency that commercial quantity of contraband came to be recovered from the shop of the petitioner, but bare perusal of report of SFSL ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 3 produced on record nowhere establishes aforesaid allegation, rather report of SFSL suggests that few samples of drugs namely, Altis 0.5, Tripodol-SR, .
Anxiless 0.25 and Wisercet were sent for chemical analysis, but it nowhere specially indicates quantity of narcotics substances contained in the aforesaid drugs allegedly recovered from the conscious possession of the petitioner.
5. While making this Court peruse statement of PW-2, Drug of Inspector, learned counsel representing the petitioner argued that aforesaid witness categorically deposed in his cross-examination that drugs allegedly recovered from the petitioner could be kept and sold in the medical store. He rt further admitted that as per schedule H-1 accused could keep and sell the recovered drugs in terms of drug licence Ex. D-2. Lastly, learned counsel representing the petitioner submitted that petitioner is behind the bars for almost two years, but till date, prosecution has not been able to examine all the prosecution witnesses, as a result of which, petitioner is incarcerating in jail for indefinite period that too without being held guilty.
6. While fairly acknowledging factum with regard to filing of the challan in competent court of law, Mr. Rajan Kahol, learned Additional Advocate General stated that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency and as such, prayer made on his behalf for grant of bail deserves outright rejection. While making this Court peruse record of investigation, learned Additional Advocate ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 4 General contended that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner is a drug paddler and he had been .
selling prohibited drugs to the young children. Mr. Kahol, stated that though petitioner had licence to store/possess prohibited drugs, but he was unable to produce record with regard to sale of aforesaid prohibited drugs. He stated that huge quantity of contraband was recovered from the shop of the of petitioner. He submitted that though as per bills produced by him, contraband recovered was purchased by him from the stockist and wholesalers, but since he was unable to show sale of aforesaid drugs and at the time of raid only rt 23,750/- tablets, out of 1,82,000 were recovered, it can be safely concluded that bail petitioner indulges in illegal trade of narcotics. Learned Additional Advocate General stated that statement of PW-2, Drug Inspector, if read in its entirety, clearly suggests that petitioner herein was unable to produce record with regard to sale of drugs. He further stated that report of SFSL, clearly reveals that entire quantity of contraband recovered from the bail petitioner was sent for chemical analysis and as such, it cannot be said that report of SFSL is not conclusive, especially when it has been specifically mentioned that drug sent for chemical analysis contain essential narcotic substance.
Lastly, learned Additional Advocate General submitted that since 12 witnesses, out of total 23 stand examined, prayer made on behalf of the petitioner for grant bail on the ground of inordinate delay in conclusion of trial is not tenable.
::: Downloaded on - 14/09/2023 20:35:12 :::CIS 57. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of alleged .
incident prohibited drugs, as detailed hereinabove, were taken into possession/recovered by the police party in the presence of drug inspector and as such, this Court is not persuaded to agree with learned counsel for the petitioner that petitioner has been falsely implicated. However, this Court of finds from the status report as well as record that during investigation petitioner had made available certain bills with regard to purchase of the prohibited drugs recovered from his shop. Police with a view to verify the rt correctness of the bills, checked the record of wholesalers/ stockist from whom, petitioner had purchased the stock. Though, it was found that prohibited drugs, named hereinabove, were purchased by the petitioner through valid bills from the wholesalers/stockiest, but since he was unable to produce record, if any, with regard to sale of such drugs, he came to be apprehended by the police and thereafter FIR, as detailed hereinabove, was lodged against him.
8. PW-2, Drug Inspector also deposed before the competent court of law that petitioner was in possession of licence for running the shop of chemist. He categorically stated that on the strength of licence in his possession, petitioner could store medicines/prohibited drugs recovered from his possession from the date of alleged incident. Though, this witness stated that bills of sale were not produced by the petitioner or his wife, but he also ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 6 admitted that bills of purchases made by petitioner from wholesalers/stockiest were available with the police.
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9. It is quite apparent from the record that at the time of search, bail petitioner specifically informed raiding party that he possesses valid licence to store drugs allegedly recovered from his shop. It is also true that he was unable to produce licence at the time of raid, but subsequently during of investigation same was made available. It is also clear from the record that authenticity and genuineness of the licence produced by bail petitioner was duly verified by Drug Inspector, Una in response to query put forth by the rt Investigating Agency. Drug Inspector categorically reported that drugs allegedly recovered from the bail petitioner are allopathic drugs and come under schedule H-1 and H-2 of the Drugs and Cosmetics Act. It is also not in dispute that bail petitioner possesses valid licence for storage of these drugs.
10. In similar facts and circumstances, this Court had an occasion to pass an order in Cr.MP(M) No.1592 of 2017, titled as Karnail Singh Vs. State of Himachal Pradesh, 2018 SCC Online 82, wherein this Court having taken note of Rule 52-A of the Narcotic Drugs & Psychotropic Substances Rules, 1985 concluded that a licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these rules. It would be apt to take note of following paras of aforesaid judgment hereinbelow:-
::: Downloaded on - 14/09/2023 20:35:12 :::CIS 7"8. It is quite evident from the record that at the time of search, bail petitioner informed the investigating agency that he possesses valid licence to store drugs as named herein above, but since he was unable to produce licence at that time, case came to be registered against him. Further, it is clearly .
evident from communication dated 13.11.2017 sent by Drug Inspector Una in response to query put by investigating agency that bail petitioner possesses valid licence for storage of drugs namely Lomotil, Trimtol plus, Alprawin 0.5 and 0.25, Altorex cough syrup, Onerex cough syrup and Jagdol. He has also reported that all drugs are allopathic drugs and come under Schedule H and H1 of Drugs and Cosmetics Act and bail petitioner of possesses valid licence for storage of these drugs. Rule 52A of Narcotic Drugs & Psychotropic Substances Rules is reproduced as under:
"CHAPTER VA rt POSSESSION, TRANSPORT, IMPORT INTER-STATE, EXPORT INTER- STATE, SALE, PURCHASE, CONSUMPTION AND USE OF ESSENTIAL NARCOTIC DRUGS 52A. Possession of essential narcotic drug.- (1) No person shall possess any essential narcotic drug otherwise than in accordance with the provisions of these rules.
(2) Any person may possess an essential narcotic drug in such quantity as has been at one time sold or dispensed for his use in accordance with the provisions of these rules.
(3) A registered medical practitioner may possess essential narcotic drug, for use in his practice but not for sale or distribution, not more than the quantity mentioned in the Table below, namely: -
Sl. Name of the essential narcotic drug Quantity No. Morphine and its salts and all 500 Milligrammes preparations containing more than 0.2 per cent of Morphine Methyl morphine (commonly known 2000 Milligrammes as "Codeine") and Ethyl Morphine and their salts (including Dionine), all dilutions and preparations except ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 8 those which are compounded with one or more other ingredients and containing not more than 100 milligrammes of the drug per dosage .
unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice Dihydroxy Codeinone (commonly 250 Milligrammes known as Oxy-codone and Dihydroxy of Codeinone), its salts (such as Eucodal Boncodal Dinarcon Hydrolaudin, Nucodan, Percodan, Scophedal, rt Tebodol and the like), its esters and the salts of its ester and preparation, admixture, extracts or other substances containing any of these drugs Dihydrocodeinone (commonly known 320 Milligrammes as Hydrocodone), its salts (such as dicodide, Codinovo, Diconone, Hycodan, Multacodin, Nyodide, Ydroced and the like) and its esters and salts of its ester, and preparation, admixture, extracts or other substances containing any of these drugs.
1-phenethyl-4-N- propionylanilino- Two transdermal
patches one each of
piperidine (the international-non-
12.5 microgram per
proprietary name of which is Fentanyl) hour and 25 microgram per hour.
and its salts and preparations,
admixture, extracts or other
substances containing any of these
::: Downloaded on - 14/09/2023 20:35:12 :::CIS
9
drugs
(
Provided that the Controller of Drugs or any other officer authorized in this behalf by him may by special order authorize in Form 3B, any such .
practitioner to possess the aforesaid drugs in quantity larger than as specified in the above table:
Provided further that such authorization may be granted or renewed, for a period not exceeding three years at a time.
Explanation. - The expression "for use in his practice" covers only the actual direct administration of the drugs to a patient under the care of the registered of medical practitioner in accordance with established medical standards and practices.
(4) For renewal of the authorization referred to in the second proviso to rt sub-rule (3), APPLICATION SHALL BE MADE TO THE Controller of Drugs atleast thirty days before the expiry of the previous authorization.
(5) (a) The Controller of Drugs may, by order, prohibit any registered medical practitioner from possessing for use in his practice under sub-rule (3) any essential narcotic drug, where such practitioner-
(i) has violated any provision of these rules; or
(ii) has been convicted of any offence under the Act; or
(iii) has, in the opinion of the Controller of Drugs abused such possession or otherwise has been rendered unfit to possess such drug.
(b) When any order is passed under clause (a) of this sub-rule, the registered medical practitioner concerned shall forthwith deliver to the Controller of Drugs the essential narcotic drug then in his possession and the Controller of Drugs shall issue orders for the disposal of such drugs.
(6)` The Controller of Drugs. May, by a general or special order, authorize any person to possess essential narcotic drug as may be specified in that order.
(7) A recognized medical institution may possess essential narcotic drug in such quantity and in such manner as specified in these rules. (8) A manufacturer may possess essential narcotic drug in such quantity as may be specified in the licence issued under rule 37 of these rules.::: Downloaded on - 14/09/2023 20:35:12 :::CIS 10
(9) A licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as maybe specified in the licence issued under these rules."
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9. Aforesaid Rule i.e. Rule 52A of the Narcotic Drugs & Psychotropic Substances Rules, 1985 clearly provides that a licenced dealer or a licenced chemist may possess essential narcotic drug in such quantity and in such manner as may be specified in the licence issued under these rules. Bare reading of aforesaid provision of law and table annexed thereto further suggests that a registered medical practitioner may possess maximum of of 2000 mg of Methyl morphine (commonly known as 'Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 Milligrammes of the drug per dosage unit and rt with a concentration of not more than 2.5% in undivided preparations and which have been established in therapeutic practice.
10. In the case at hand, as clearly emerges from report of FSL, 1.25 mg Diphenoxylate Hydrochloride i.e. other compound, is present with Codeine Phosphate i.e. 10.0 mg per 100 ml. Similarly, result of drug namely Onerex and Lomotil also suggests that apart from prohibited drug, there is presence of compounded drug i.e. Diphenoxylate Hydrochloride 1.25 mg and Atropine Sulphate 0.25 mg.
11. Rule 65A of the Narcotic Drugs & Psychotropic Substances Rules, 1985 provides that no person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945 provided that sale, purchase, consumption or use of psychotropic substances specified in Schedule I shall be only for the purposes mentioned in Chapter VIIA. Similarly, Rule 66 of the aforesaid Rules provides that no person shall possess any psychotropic substance for any of the purposes covered under 1945 rules, unless he is lawfully authorized to possess such substance for any of the said purposes under these rules, provided that possession of a psychotropic substance specified in Schedule I shall be only for the purposes mentioned in Chapter VII A. Rule 67A of Chapter VIIA of the aforesaid rules provides as under:
::: Downloaded on - 14/09/2023 20:35:12 :::CIS 11"67A Special provisions for medical and scientific purposes Notwithstanding anything contained in the foregoing provisions of these rules
(a) a narcotic drug and psychotropic substance may be used for -
(i) scientific requirement including analytical requirements of any .
government laboratory or any research institution in India or abroad;
(ii) very limited medical requirements of a foreigner by a duly authorized person of a hospital or any other establishment of the government especially approved by that government;
(iii) the purpose of de-addiction of drug addicts by government or of local body or by an approved charity or voluntary organisation or by such other institution as may be approved by the Central Government(or the authority exercising the powers under sub-
rt clause (iv) of clause (a);
(iv) the purpose of restraining or immobilizing wild animals by or
under the authority of the Government and approved by that Government;)
(b) persons performing medical or scientific functions shall keep records concerning the acquisition of the substance and the details of their use in Form 7 of these rules and such records are to be preserved for at least two years after their (sic)
(c) a narcotic drug and psychotropic substance (or the authority exercising the powers under sub-clause (iv) of clause (a) may be supplied or dispensed for use to a foreigner pursuant to medical prescription only from the authorized licensed pharmacists or the authorized retail distributors designated by authorities responsible for public health). "
12. It is amply clear from bare reading of aforesaid provisions especially Rule 67A(b) that narcotic drugs and psychotropic substances can be used for performing medical or scientific functions and persons performing such duty shall keep records concerning acquisition of such substances and the details of their use in Form 7 of these rules and such records shall be preserved atleast for two years after their acquisition. As has been taken note above, under Rule 65A, no person can sell, purchase, consume or use any ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 12 psychotropic substance save and except in accordance with Drugs and Cosmetics Rules, 1945 and sale, purchase, consumption or use of the psychotropic substance specified in Schedule I shall be only for the purposes mentioned in Chapter VIIA.
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13. Needless to say, licence for selling drugs as prescribed under Drugs and Cosmetics Act is issued under Drugs and Cosmetics Rules 1945. In the case at hand, Mr. M.L. Chauhan, Additional Advocate General after having perused communication dated 13.11.2017, was unable to suggest or state that bail petitioner was not having valid licence to possess drugs which have been otherwise termed to be Schedule H drugs.
of
14. At this stage, this Court, after having perused material available on record, especially intimation /communication dated 13.11.2017 sent by Drug Inspector Una, is convinced and satisfied that the bail petitioner was having rt valid licence to possess/store drugs allegedly recovered from his car and shop. Drug Inspector has categorically stated in his communication dated 13.11.2017 that the drugs namely Lomotil, Trimtol Plus, Altorex Cough Syrup, Onerex cough syrup and Jagdol are allopathic drugs and are covered under Schedule H and H1 of Drugs and Cosmetics Act, which can be sold and stored by a licence holder, under Drugs and Cosmetics Act/Rules, 1945.
15. At the cost of repetition, it may be stated that though perusal of report of FSL suggests that few drugs namely Altorex, Onerex, Lomotil, Alprawin 0.5 and Alprawin 0.25 contain prohibited drugs namely Codeine Phosphate, Diphenoxylate Hydrochloride, Atropine Sulphate and Alprazolam, but as has been taken note above, licenced chemist/dealer can possess/store prohibited drugs within prescribed limits as provided under Rule 52A of the Narcotic Drugs & Psychotropic Substances Rules.
11. In the aforesaid judgment, this Court having taken note of Rule 65-A of the Narcotic Drugs & Psychotropic Substances Rules, 1985 concluded that no person shall sell, purchase, consume or use any psychotropic substance except in accordance with the Drugs and Cosmetics Rules, 1945 provided that sale, purchase, consumption or use of ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 13 psychotropic substances specified in schedule 1 shall be only for the purposes mentioned in Chapter VIIA. Similarly, Rule 66 of aforesaid rules .
provides that no person shall possess any psychotropic substance for any of the purposes covered under 1945 rules, unless he is lawfully authorized to possess such substance for any of the said purpose under these rules. In aforesaid judgment this Court also specifically took note of Rule 67-A i.e. of special provision for medical and scientific purposes. Aforesaid rule clearly provides that Narcotic Drugs & Psychotropic Substances can be used for performing medical or scientific functions and persons performing such duty rt shall keep records concerning acquisition of such substances and the details of their use in Form 7 of these rules and such records shall be preserved aleast for two years after their acquisition. It is not in dispute in the case at hand that at the time of recovery of contraband, petitioner was in possession of valid licence, meaning thereby, he was competent to sell, purchase and store medicines containing prohibited drugs as specified in schedule H and H-1. As has been taken note hereinabove, petitioner also placed on record bills with regard to purchase made by him from the wholesalers/stockiest and such bills were duly verified. Now, precisely the case of the investigating agency is that though as per bills of purchases made available, approximately 1,82000/- tablets containing prohibited drugs were purchased, but in stock only 23,750/- tablets were found available, if it is so there is ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 14 presumption that huge quantity of prohibited drugs was sold unauthorizedly by the bail petitioner.
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12. Though, there appears to be some correctness in aforesaid plea set up by learned Additional Advocate General, but having carefully perused report of SFSL, this Court is unable to accept aforesaid plea for the reason that though it has been claimed that entire bulk was sent for chemical of analysis, but if the report of SFSL is perused in its entirety, it nowhere indicates quantity of essential narcotic substance in the prohibited medicine recovered from the conscious possession of the petitioner. SFSL while rt retuning findings has simply stated that Altis 0.5, Tripodol-SR, Anxiless 0.25 and Wisercet are the sample of alprazolam/ tramadol, but there is no conclusion with regard to quantity of essential narcotics substance in the drugs sent for chemical analysis in terms of Rule 52-A of the Narcotic Drugs & Psychotropic Substances Act.
13. Though, aforesaid aspect of the matter is to be considered and decided by the learned trial Court on the basis of evidence adduced on record by the prosecution, but this court after having carefully perused the record, which has been otherwise taken note above, sees no reason to let the bail petitioner incarcerate in jail, for indefinite period, more particularly when he is already in jail for more than two years. Guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence, but at this stage, this Court, after ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 15 having taken note of the fact that bail petitioner was having a valid licence to possess the drugs allegedly recovered from his shop, sees no reason to .
curtail his freedom, which is of paramount consideration as far as this Court is concerned. Apart from above, this Court is/was unable to find any material adduced on record by investigating agency, from where it can be inferred that in the event of petitioner's being enlarged on bail, he may flee from justice or of may not remain available for trial, rather, petitioner being a local resident, shall always remain available for trial.
14. By now it is well settled that gravity alone cannot be decisive rt 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:-
"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 ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 16 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 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."
15. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and of others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 rt SCC 565, laid down the following parameters for grant of bail:-
"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 visualized 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 Cr.P.C.
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:
(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.::: Downloaded on - 14/09/2023 20:35:12 :::CIS 17
(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;
of
(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 rtdetention 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." (Emphasis supplied)
16. 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 valuable right of liberty of ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 18 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."
17. Needless to say object of the bail is to secure the presence of the accused in the trial and proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable of that the party will appear to take its trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of rt 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.
18. 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:
(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.
19. By now it is well settled that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 19 Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under article 21 of Constitution of India. Reliance is placed on judgment passed by .
the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-
"11. This Court has consistently recognised the right of the accused of for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail rt for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
20. No doubt quantity of contraband allegedly recovered from the bail petitioner is commercial and as such, rigours of S. 37 of the Act are attracted but bare perusal of provisions contained under S.37 nowhere suggests that no bail can be granted in the cases involving commercial quantity rather in such cases, court after affording due opportunity of hearing to public prosecutor can proceed to grant bail, if it is satisfied that the bail petitioner has been falsely implicated and in the event of bail he will not indulge in such activities again.
21. Recently Hon'ble Apex Court in Rabi Prakash vs. The State of Odisha, SLP (Crl.) No. 4169 of 2023 rendered on 13.07.2023 has held that the prolonged incarceration, generally militates against the most precious ::: Downloaded on - 14/09/2023 20:35:12 :::CIS 20 fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo .
created under Section 37(1)(b)(ii) of the NDPS Act. Relevant para of aforesaid judgment is as under:-
"As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1 st condition stands complied with. So far as the 2 nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the of same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the rt statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."
22. In view of the detailed discussion made hereinabove as well as law taken into consideration, present petition is allowed and the petitioner is ordered to be enlarged on bail in the aforementioned FIR, subject to his furnishing personal bonds in the sum of Rs.10,00,000/-(Rupees Ten Lakh) with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate, 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 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 - 14/09/2023 20:35:12 :::CIS 21
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) He shall deposit passport, if any, held by him, with the Investigating Officer.
.
23. 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.
24. Any observations made hereinabove shall not be construed to be of a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.
25. rt Learned counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website before the trial Court, who shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
(Sandeep Sharma) Judge September13,2023 (shankar) ::: Downloaded on - 14/09/2023 20:35:12 :::CIS