Himachal Pradesh High Court
Ankush vs State Of Himachal Pradesh on 30 October, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 1327 of 2018
Decided on: October 30, 2018
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Ankush ... Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
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For the petitioner : Mr. V.S. Chauhan, Advocate.
For the respondent : Mr. S.C. Sharma, Mr. Dinesh
Thakur and Mr. Sanjeev Sood,
r Additional Advocates General.
ASI Inder Dev Sharma, I/O, Police
Station, Kullu, HP.
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Sandeep Sharma, Judge (oral):
Bail petitioner, namely Ankush, who is behind the bars since 5.7.2018, has approached this court in the instant proceedings filed under S. 439 CrPC, praying therein for grant of bail in FIR No. 159 of 2018 dated 5.7.2018 under S. 21 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station, Kullu, District Kullu, Himachal Pradesh.
2. Sequel to order dated 8.10.2018, ASI Inder Dev Sharma, I/O, Police Station, Kullu, HP has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 2the basis of investigation carried out by the investigating agency. Record perused and returned.
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3. Perusal of status report suggests that the bail petitioner named herein above, came to be apprehended with the contraband i.e. 6 grams of heroin at place known as, "Kainchi Mor", Bhekhli Road, Kullu, by the police party on 5.7.2018 and since then, he is behind the bars.
4. Mr. V.S. Chauhan, learned counsel representing the bail petitioner states that bare perusal of record/status report suggests that no case, if any, is made out against the bail petitioner under S. 21 of the Act ibid, because the contraband never came to be recovered from the exclusive and conscious possession of the bail petitioner rather, the police party, as per its own story, recovered the contraband from a drain. He further contended that there is nothing on record suggestive of the fact that independent witnesses came to be associated by the police party at the time of so called recovery effected from the bail petitioner, which itself suggests that the bail petitioner has been falsely implicated. Lastly Mr. Chauhan, contended that the contraband i.e. 6 grams of heroin alleged to have been recovered from the bail petitioner, is of 'inter-mediate' quantity and as such, rigours of S. 37 of the Act ibid are not attracted and bail petitioner can be ordered to be enlarged on bail, during the pendency of the ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 3 trial. Mr. Chauhan, further contended that since the bail petitioner has already suffered for more than three months, in .
case, he is allowed to remain behind the bars for indefinite period, it could amount to pre-trial conviction.
5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly admitting the fact that the Challan stands filed in the competent Court of law and nothing is required to be recovered from the bail petitioner, contended that keeping in view the past record of the bail petitioner, he does not deserve to be enlarged on bail. Mr. Thakur, learned Additional Advocate General, further contended that the record reveals that in the year 2015, similar case under the Act ibid was registered against the bail petitioner and trial pursuant to the same is still pending adjudication in the competent Court of law. Mr. Thakur, further contended that there is ample evidence adduced on record by the investigating agency to demonstrate the fact that the contraband referred to herein above came to be recovered from the exclusive and conscious possession of the bail petitioner and as such, there is no force in the arguments of the learned counsel representing the bail petitioner that his client has been falsely implicated.
6. I have heard the learned counsel for the parties and gone through the record carefully ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 4
7. Having heard the learned counsel representing the parties and perused the material available on record, this .
court finds force in the arguments of Mr. V.S. Chauhan, learned counsel representing the bail petitioner that the contraband alleged to have been recovered from the bail petitioner is of 'inter-mediate' quantity i.e. 6 grams of heroin and in case, he is allowed to remain behind the bars for indefinite period, it would amount to pre-trial conviction, especially when he has already suffered for about four months.
8. No doubt, record/ status report reveals that in the year 2015, a case under the Act ibid was registered against the bail petitioner, but it has been repeatedly held by Hon'ble Apex Court and this court also that case, if any, registered in the past, can not be a ground for rejection of bail in the subsequent FIRs. Apart from above, no material has been placed on record by the investigating agency to substantiate the fact that in the event of bail petitioner being enlarged on bail, he may flee from justice.
9. Recently it has been held by the Hon'ble Apex Court as also this court that freedom of an individual is of utmost importance and same can not be curtailed for indefinite period, especially when guilt is yet to be proved in accordance with law. This court is fully conscious of the fact that the offence, if any, committed under the Act ibid is ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 5 heinous crime, but as has been noticed herein above, rigours of S. 37 of the Act ibid are not attracted in the present case .
keeping in view the inter-mediate quantity of the contraband alleged to have been recovered from the possession of the bail petitioner.
10. Leaving everything aside, guilt, if any, of the bail petitioner is yet to be proved in accordance with law, as such, this court sees no impediment in accepting the prayer for enlargement on bail made on behalf of the bail petitioner.
11. 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 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 ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 6 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."
12. 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:-
"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 ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 7 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 rof 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."
13. 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 ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 8 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 ran 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."
14. 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, ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 9 character of the accused, circumstances which are peculiar to the accused involved in that crime.
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15. 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 r 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.
16. 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.1,00,000/- (Rs. One Lakh) with one local surety 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;::: Downloaded on - 31/10/2018 22:56:50 :::HCHP 10
(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
(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.
17. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
18. 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 October 30, 2018 (vikrant) ::: Downloaded on - 31/10/2018 22:56:50 :::HCHP