Himachal Pradesh High Court
Kailash vs State Of Himachal Pradesh on 25 October, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 1767 of 2019
Decided on October 25, 2019
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Kailash ... Petitioner
Versus
State of Himachal Pradesh Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner : Mr. Bala Nand Mehta, Advocate.
For the respondent : Mr. Sanjeev Sood, Additional
Advocate General with Mr. Kunal
Thakur, Deputy Advocate General.
Inspector Vikas Kumar, Police
Station, Brow, District Kullu,
Himachal Pradesh.
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Sandeep Sharma, Judge (oral):
Bail petitioner-Kailash, who is behind bars since 28.8.2019, has approached this Court in the instant proceedings, for grant of regular bail in FIR No. 48, dated 28.8.2019, under Ss.
21, 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act registered at Police Station, Brow, District Kullu, Himachal Pradesh.
2. Pursuant to order dated 4.10.2019, Inspector Vikas Kumar has come present with the record. Mr. Sanjeev Sood, learned Additional Advocate General has also placed on record status 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 2report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned.
3. Status report/record reveals that on 28.8.2019, at 6.15, .
police intercepted vehicle bearing registration No. HP-6A-6736, being driven by the bail petitioner but since bail petitioner as well as other occupants of the car got perplexed after seeing the police, police carried out search after associating independent witness and allegedly recovered 21 grams of Heroin. After completion of codal formalities, Police registered FIR, as detailed herein above, against the bail petitioner and other co-accused on 28.8.2019 and since then, bail petitioner is behind the bars whereas, co-accused namely Pradeep Kumar, Hemant Kumar, Shyam Lal and Amit Kumar stand enlarged on bail, vide order dated 17.9.2019 passed by Special Judge-II, Kinnaur at Rampur.
4. Mr. Sanjeev Sood, learned Additional Advocate General, while fairly admitting that Challan has been filed and nothing remains to be recovered from the bail petitioner, contended that keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency.
Mr. Sood contended that though other co-accused have been released on bail but since vehicle from where contraband is alleged to have been recovered belongs to the bail petitioner, his bail petition deserves outright rejection. While referring to the record, learned Additional Advocate General contended that two criminal ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 3 cases stand registered against the bail petitioner as such, taking note of his antecedents, it may not be in the interest of justice to release the petitioner on bail at this stage.
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5. Having heard learned counsel for the parties, this court finds that 21 grams of Heroin came to be recovered from the dash board of the car bearing registration No. HP-06A-6736, owned and driven by bail petitioner, but since other occupants of the car stand already enlarged no bail on the ground that intermediate quantity of the contraband came to be recovered from the vehicle in question, this Court, sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial.
6. Though record/status report reveals that at the time of carrying out search in the vehicle in question, police associated independent witness, but still guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution. Reasoning applied by learned Court below, while rejecting bail of the petitioner and granting bail to other co-accused that since the vehicle from where contraband came to be recovered belongs to the bail petitioner, is not plausible and tenable, especially when it is none of the case of the prosecution that the contraband allegedly recovered from the car in question exclusively belongs to the bail petitioner. Leaving everything aside, contraband allegedly recovered from the vehicle of the bail petitioner is of intermediate quantity as such, rigours of ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 4 S.37 of the Act ibid, are not attracted, hence, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when, guilt, if any, of the bail .
petitioner is yet to be determined in accordance with law.
7. Hon'ble Apex Court and this Court have held in a catena of judgments that one is deemed to be innocent till the time his/her guilt is proved in accordance with law. Though, record reveals that one case is pending adjudication against the petitioner and in one case, he has been convicted, but record clearly reveals that aforesaid cases are not under Narcotic Drugs & Psychotropic Substances Act, rather pertain to different provisions of Indian Penal Code.
8. Hon'ble Apex Court in Maulana Mohammed Amir Rashadi v. State of U.P. (2012) 2 SCC 382 has held that merely on the basis of criminal antecedents, the claim of the bail petitioner cannot be rejected. Hon'ble Apex Court has observed as under:
"10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 5 other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."
9. There is no material placed on record suggestive of the fact .
that the bail petitioner had been indulging in illegal trade of narcotics, rather he appears to be a drug addict and no fruitful purpose would be served by keeping him behind bars rather, it would be in his interest, in case family of the accused takes him to some Rehabilitation Centre so that in future bail petitioner desists from indulging in such like activities.
10. 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/her guilt is yet to be 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 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 ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 6 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.
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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 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 first-time 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 ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 7 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.
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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 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 Re-Inhuman Conditions in 1382 Prisons."
11. By now it is well settled 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. 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, ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 8 unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man .
is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been 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."
12. 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 ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 9 appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, .
severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
13. 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.
14. In view of above, bail petitioner has carved out a case for grant of bail and as such, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2,00,000/- (Rs. Two Lakh) with one local surety in the like amount, to the satisfaction of the learned trial Court/Investigating Officer, besides the following conditions:
::: Downloaded on - 25/10/2019 20:27:52 :::HCHP 10(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;
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(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 passports, if any, held by him.
15. 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.
16. 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 this petition alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge October 25, 2019 (vikrant) ::: Downloaded on - 25/10/2019 20:27:52 :::HCHP