Himachal Pradesh High Court
Ashutosh Attri vs State Of Himachal Pradesh on 19 December, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1692 of 2018 .
Date of Decision No. 19.12.2018
Ashutosh Attri ........ 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. Ashwani Sharma & Mr. Parveen Chandel, Advocates.
For the respondent: Mr. Dinesh Thakur, Additional Advocate General, with Mr. Amit Kumar Dhumal, Deputy Advocate General.
__________________________________________________________ Sandeep Sharma, Judge (oral):
Bail petitioner, namely Ashutosh Attri, who is behind the bars since 30.7.2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.220 of 2018, dated 30.7.2018, under Section 21, 22 & 29 of the Narcotics Drugs & Psychotropic Substances Act ( for 1 Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 2
short "ND&PS Act"), under Section 465 of IPC, Section 12(1) (A) (B) of the Passport Act and Section 14 of the Foreigners Act, .
registered at police Station, Solan, District Solan, Himachal Pradesh.
2. Sequel to order dated 5.12.2018, HC Dev Raj, Police Station, Solan, District Solan, has come present alongwith record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
3. Careful perusal of the record/status report reveals that on 30.7.2018 police party intercepted a car bearing No. HP 14B3406 being driven by the bail petitioner and recovered 11 grams of Chitta (Heroin) from the dash board of the car. After completion of necessary codal formalities, police registered the case against the bail petitioner and arrested him on the same day and since then bail petitioner is behind the bars. During the investigation, police found that bail petitioner is addicted and had been purchasing psychotropic substance from Delhi. Police ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 3 also found that some Foreigner National sold the contraband to the bail petitioner, who used the same for his consumption.
.
Investigation in the case is complete and challan stands filed in the competent court of law. Prior to filing of present bail petition, bail petitioner in the month of August, 2018 had filed bail petition in the Court learned Special Judge, Solan, which was dismissed on 23.08.2018. Present bail petition has been filed in the change circumstances because at the time of filing bail petition before the learned Special Judge, Solan,, challan was not filed and investigation in the case was not complete, but now challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner.
4. Mr. Parveen Chandel, learned counsel representing the bail petitioner, while referring to the record/status report, vehemently argued that there is no evidence to connect the bail petitioner with the commission of offence alleged to have been committed by the bail petitioner and he deserves to be enlarged on bail. While referring to the record/status report, Mr. Chandel, strenuously argued that no independent witness came to be ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 4 associated at the time of alleged recovery from the car of the bail petitioner and as such, prayer made in the application for .
enlargement on bail deserves to be considered sympathetically.
Mr. Chandel, further contended that though there is no evidence, worth the name, to connect the bail petitioner with the commission of offence, if any, committed by the bail petitioner, but even for the sake of arguments, it is presumed that bail petitioner was nabbed carrying 11 grams of Chitta (Heroin), he deserves to be enlarged on bail as rigour of Section 37 of the Act are not attracted in the present case because quantity recovered from the bail petitioner is intermediate not commercial. Lastly, Mr. Chandel, contended that bail petitioner is first offender and he has bright future ahead and in case he is left to incarcerate in jail for indefinite period, his entire future would be ruined and as such, his prayer for enlargement on bail may be considered.
5. Mr. Dinesh Thakur, learned Additional Advocate General while fairly acknowledging the factum with regard to filing of the challan, contended that though nothing is required to be recovered from the bail petitioner, but keeping in view the ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 5 gravity of offence alleged to have been committed by the bail petitioner, he does not deserves to be enlarged on bail. Mr. .
Thakur, further contended that though record reveals that bail petitioner had not been indulging in this trade earlier, but for his own consumption he had been purchasing the contraband from the Foreigner National, which is a serious issue. He further contended that there is every possibility of the petitioner being indulged in illegal activity again in case he is enlarged on bail and as such, his prayer for enlargement on bail, at this stage, may be rejected.
6. I have heard learned counsel representing the parties and perused the record carefully.
7. Close scrutiny of the record/status report reveals that 11 grams of Chitta (Heroin) came to be recovered from the dash board of the car being driven by the bail petitioner, who is 28 years old boy. Record further reveals that bail petitioner is unemployed youth and had been trying his luck in various trade and business. It appears that he became addicted and in this process fell prey to the bad elements. Learned counsel ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 6 representing the bail petitioner fairly admitted the factum with regard to bail petitioner having become addicted had come to the .
notice of the parents of the bail petitioner in the month of January, 2018, whereafter they immediately took him to Rehabilitation Centre at PGI, Chandigarh and in this regard, prescription slip issued by PGI, Chandigarh was made available to this Court, perusal whereof suggests that bail petitioner was advised counseling. Parents of bail petitioner,who are present in Court, fell ill and for treatment went to Delhi and during this period bail petitioner again indulged in illegal activities and came to be nabbed by the police.
8. Though, having taken note of the fact that contraband came to be recovered from the car being driven by the bail petitioner, this Court would have never acceded to the request made for grant of bail, especially having taken note of the fact that this drugs menace has caused lot of damage to the society, especially young youth, but same time this Court cannot loose the sight of the fact that in case people like bail petitioner, who have unfortunately become drug addict are not sent to ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 7 Rehabilitation Centre or for treatment they may become victim of this menace and as such, this Court feels that one chance need .
to be given to the bail petitioner to improve himself. The parents of the bail petitioner undertake that they shall take bail petitioner to the Rehabilitation Centre immediately, so that he is advised/counselled properly. Otherwise also, this Court finds that quantity of contraband allegedly recovered from the bail petitioner i.e. 11 grams of Chitta (Heroin) is of intermediate and as such, rigour of section 37 are also not attracted. Challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner. Guilt, if any, of bail petitioner is yet to be proved, in accordance with law and as such, it would not be fair in case he is allowed to incarcerate in jail for indefinite period during the pendency of the trial, especially when he has suffered for the last five months. There is nothing on record to suggest that in past bail petitioner had been indulging in such activities and at any point of time, case, if any, was ever registered against the bail petitioner under Section ND & PS Act.
::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 89. It has been repeatedly held by Hon'ble Apex Court as .
well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law.
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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 9 appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:
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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 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 ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 10 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 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 ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 11
11. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court .
Cases 49; 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 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 ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 12 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 appear to take his trial. Otherwise, bail is not to be withheld as r to 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.
13. 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:
(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;
::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 13(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. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs.
1,00,000/ (Rs. One lakh) with one 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 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 ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP 14 facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and he shall not leave the territory of India without .
d.
the prior permission of the Court.
15. 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 the bail.
16. to 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 application alone.
The bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma), Judge 19th December,2018 (shankar) ::: Downloaded on - 20/12/2018 22:56:42 :::HCHP