Himachal Pradesh High Court
Munshi Ram vs State Of Himachal Pradesh on 16 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CrMP(M) No. 2689 of 2022
Decided on: December 16, 2022
.
_______________________________________________________________
Munshi Ram ...........Petitioner
Versus
State of Himachal Pradesh ....Respondent
_______________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1No.
For the Petitioner : Mr. Rahul Singh Verma and Mr.
Anubhav Chopra, Advocates.
For the Respondent : Mr. Sumesh Raj and Mr. Dinesh
Thakur, Additional Advocates
General.
_______________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner-Munshi Ram, who is behind bars since 15.10.2020, has approached this court in the instant proceedings, praying therein for grant of regular bail in FIR No. 137 of 2020 dated 15.10.2022, registered at Police Station Puruwala, District Sirmaur, under Ss. 21 and 29 of Narcotic Drugs and Psychotropic Substances Act.
2. In terms of order dated 9.12.2022, respondent-State has filed status report and HC Dalip Kumar No. 516, PAB Rampurghat, Police Station Puruwala, District Sirmaur, Himachal Pradesh has come present with record. Record perused and returned.
3. Close scrutiny of status report/record reveals that on 15.10.2022, at 3.30 pm, police party present near Rampurghat, on the basis of secret information intercepted a motor cycle bearing 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 16/12/2022 20:35:51 :::CIS 2registration No. HP-17E-3388 being driven by the petitioner, for checking. Since the petitioner as well pillion rider got perplexed after .
having seen the police, police deemed it necessary to conduct search of the riders as also of the luggage being carried by them. Police, after associating independent witnesses, effected search of the petitioner, pillion rider as well as luggage and allegedly recovered 840 capsules of Spasmo Proxyvon Plus. Since the capsules so recovered contained prohibited drug namely Tramadol, police asked petitioner to produce bill of same but he was unable to produce the same as such, police after having completed necessary codal formalities, registered FIR, as detailed hereinabove on 15.10.2022 and since then, the petitioner and pillion rider are behind the bars. Since investigation is complete and nothing remains to be recovered from the bail petitioner, he has approached this court in the instant proceedings, praying therein for grant of regular bail.
4. While fairly admitting factum with regard to completion of investigation and filing of Challan in the competent court of law, Mr. Dinesh Thakur, learned Additional Advocate General submits that though nothing remains to be recovered from bail petitioner but keeping in view gravity of offence alleged to have been committed by the bail petitioner, he does not deserve leniency and his prayer for bail deserves outright rejection. While making this court perused status report/record, learned Additional Advocate General states that there is overwhelming evidence on record suggestive of the fact that the bail petitioner alongwith co-accused indulges in illegal trade of narcotics as ::: Downloaded on - 16/12/2022 20:35:51 :::CIS 3 such, it may not be in the interest of justice to enlarge him on bail, as in that event, he may not only flee from justice but may indulge in such .
activities again.
5. Having heard learned counsel for the parties and perused the material available on record, this court finds that on 15.10.2020, police allegedly recovered commercial quantity of contraband from the bag being carried by the riders of motor cycle in question, in the presence of independent witnesses. Interestingly aforesaid
6.
r to independent witnesses have turned hostile and not supported the prosecution case.
True it is that statements of other material prosecution witnesses are yet to be recorded as such it would be too premature at this stage to conclude innocence or guilt, if any, of the bail petitioner in the commission of alleged offence, but having taken note of fact that the bail petitioner is behind bars for more than two years and till date, only one prosecution witness out of 21 witnesses has been examined, prayer of the bail petitioner for grant of bail on account of delay in conclusion of trial, deserves to be considered. No doubt, commercial quantity of contraband came to be recovered from the conscious possession of the bail petitioner, as such, rigours of S.37 of the Act are attracted in the present case, but a bare reading of the aforesaid provision, nowhere suggests that there is complete bar for the court to grant bail in cases involving commercial quantity of contraband, rather, court, after having afforded opportunity of hearing to the public prosecutor can always proceed to enlarge the accused on bail, if it is ::: Downloaded on - 16/12/2022 20:35:51 :::CIS 4 satisfied that the accused has been falsely implicated in the case and there is no likelihood of the accused indulging in such activities again, .
in case enlarged on bail.
7. Though, on merits, petitioner may not have a very good case for grant of bail but definitely, having note of the fact that he is behind the bars for last more than two years coupled with the fact that there is no likelihood of the conclusion of trial in near future, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period, which otherwise amounts to pre-trial conviction.
In the case at hand, FIR was registered on 15.10.2020 and till date, prosecution has examined only one witnesses out of total of twenty one, meaning thereby, in all probabilities, trial is likely to consume considerable time for its conclusion.
8. 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.
::: Downloaded on - 16/12/2022 20:35:51 :::CIS 59. Placing reliance upon aforesaid judgments, a Co-
ordinate 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.
10. Apart from above judgment, Co-ordinate Bench of this court while granting bail vide order dated 22.3.2021 in CrMP(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, 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.
11. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred to order dated 12.10.2020 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 ::: Downloaded on - 16/12/2022 20:35:51 :::CIS 6 was examined in February, 2020 and, thereafter, there as no further progress in the trial.
.
12. 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.
13. The learned Counsel appearing for the petitioner 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.
14. In similar circumstances, in CrMP(M) No. 1255 of 2022, titled Puran Chand v. State of Himachal Pradesh, decided on 28.7.2022, 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.
15. In view of the law taken note herein above, bail petitioner is definitely entitled to be released on bail, keeping in view the delay in trial.
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 ::: Downloaded on - 16/12/2022 20:35:51 :::CIS 7 expressed by learned Assistant 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 can not 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 Sinh 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 ::: Downloaded on - 16/12/2022 20:35:51 :::CIS 8 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.
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 petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.5.00 Lakh with two sureties surety in the like amount each, to the satisfaction of the learned trial Court, besides the 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 ::: Downloaded on - 16/12/2022 20:35:51 :::CIS 9 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.
22. 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.
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 disposal of this petition alone. The petition stands accordingly disposed of.
A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner 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 December 16, 2022 (vikrant) ::: Downloaded on - 16/12/2022 20:35:51 :::CIS