Himachal Pradesh High Court
Beli Ram vs State Of Himachal Pradesh on 11 December, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MP (M)No. 1756 of 2020
Date of Decision: 11.12.2020
.
Beli Ram .........Petitioner.
Versus
State of Himachal Pradesh .....Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Peeyush Verma, Advocate,
through video-conferencing.
For the Respondent: Mr. Sudhir Bhatnagar, Additional
Advocate General, through video-
conferencing.
Sandeep Sharma, J (oral)
Bail petitioner namely, Beli Ram, who is behind the bars since 4.12.2017, 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.320 of 2017, dated 24.11.2017, under Sections 20 & 29 of the Narcotic Drugs & Psychotropic Substances Act,1985( for short 'Act), Sections 181 and 196 of Motor Vehicles Act and Section 201 of IPC, registered at police Station, Sadar, District Mandi, Himachal Pradesh.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 11/12/2020 20:18:23 :::HCHP 22. Status report filed in terms of order dated 23.11.2020 on behalf of the respondent-State, reveals that on 23.11.2017, police party laid Nakka near Sukibhai and stopped car bearing No.HP-34-B-6732 (Alto) for checking. Since .
conduct of the occupants of the vehicle, as referred above, was found to be suspicious, police after having associated two independent witnesses carried out the personal search of the occupants of the car as well as vehicle bearing No. HP-34-B-
6732 (Alto) and allegedly revered 4kg. 285 grams charas from the penals of the front doors of the car. Since, no plausible explanation came to be rendered on record by the occupants of the car namely, Sunil Kumar, Ajay Kumar and Govind Ram, police after completion of the necessary codal formalities registered the aforesaid FIR against them and since then they are behind the bars. Allegedly, during investigation persons arrested on the date of alleged incident by the police revealed that they had purchased aforesaid quantity of contraband from the present bail petitioner i.e Beli Ram at village Bhalan for consideration of Rs. 2,00,0000/-. Though, initially persons named Beli Ram absconded, but on 4.12.2017 surrender before the police station concerned. As per the case of the prosecution, bail petitioner Beli Ram during the investigation admitted the factum with regard to sale and purchase of ::: Downloaded on - 11/12/2020 20:18:23 :::HCHP 3 charas for consideration of Rs. 2, 00,000/-. Status report reveals that out of Rs. 2,00,000/- bail petitioner gave Rs.
70,000/- on 23.11.2017 to person namely, Bhimi Ram R/o village Kandi for purchasing two mules. As per the .
investigating agency, remaining amount of Rs.1,30,000/- was admitted to be spent by bail petitioner on the construction of his house. Since bail petitioner allegedly destroyed sim of the telephone/mobile used by him while talking to the principal accused, a case under section 201 of IPC alongwith Section 20 and 29 of NDPS Act, also came to be registered against him and since 4.12.2017, he is behind the bars.
3. For completion of facts, it may be noticed that prior to filing of the petition at hand, petitioner had earlier approached this Court by way of Cr.MP(M) No.757 of 2019, but the same was dismissed as withdrawn vide judgment dated 20th June, 2019, whereby this Court having taken note of the fact that bail petitioner is behind the bars since 4.12.2017, directed the learned Court below to conclude the trial expeditiously, preferably on or before 30.9.2019. However, fact remains that till date only five prosecution witnesses, out of 17 have been examined. Since five prosecution witnesses including independent witnesses associated by the prosecution to prove recovery of contraband have not supported the case of ::: Downloaded on - 11/12/2020 20:18:23 :::HCHP 4 the prosecution during the trial, petitioner has approached this Court in the instant proceedings under the changed circumstances.
4. Mr. Sudhir Bhatnagar, learned Additional .
Advocate General while fairly admitting that till date only five prosecution witnesses have been examined, contends that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail may be rejected outrightly. Learned Additional Advocate General while making this court to peruse the status report submits that it stands duly established on record that present bail petitioner is the main supplier, who after having taken sum of Rs. 2,00,000/- sold commercial quantity of charas to the co-accused. While fairly admitting that one of independent witness associated by the Investigating Agency to prove recovery has resiled from his statement, learned Additional Advocate General contends that since statement of another independent witness Ayush Sharma is yet to be recorded, it may not be in the interest of justice to enlarge bail petitioner on bail at this stage because in the event of his being enlarged on bail, he may not only flee from justice, but may also make an attempt to dissuade ::: Downloaded on - 11/12/2020 20:18:23 :::HCHP 5 the other prosecution witnesses from deposing against him.
Lastly, learned Additional Advocate General contends that since matter has been already fixed on 29.12.2020 for recording the statement of remaining prosecution witnesses, .
prayer having been made on behalf of the petitioner for grant of bail may not be considered at this stage.
5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that it is not the petitioner from whose conscious and exclusive possession commercial quantity of contraband came to be recovered, rather this is from the car bearing HP-
34-B-6732 (Alto) occupied by three co-accused namely, Sunil Kumar, Govind Ram and Ajay Kumar. Petitioner has been named in the FIR on the basis of alleged disclosure made by occupants of the car named hereinabove that they had purchased commercial quantity of charas from the bail petitioner for the total consideration of Rs.2,00,000/-.
Investigating Agency to establish factum with regard to transfer of money in favour of the bail petitioner has made an attempt to setup a case that out of Rs.2,00,000/- allegedly taken by the bail petitioner, sum of Rs.70,000/- was paid to person namely, Bhimi Ram, from whom allegedly present bail petitioner purchased two mules, but interestingly aforesaid ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 6 Bhimi Ram while deposing as PW-3 before the learned Court below has not supported the case of the prosecution. Bhimi Ram(PW-3) in his examination-in-chief have specifically stated that he does not know, who is Beli Ram i.e. present bail .
petitioner. He has also stated that he did not sell anything to the Beli Ram and at no point of time police had come to him.
He has also denied the statement, if any, given by him to the police. Cross-examination conducted on this witness, if perused in its entirety completely demolishes the case of the prosecution. This witness in his cross-examination while specifically denying that he has taken Bhawani Service Station on the lease has also denied that on 6.12.2017 police brought present bail petitioner Beli Ram to him. He also denied the factum of purchase of two mules by the bail petitioner for the consideration of Rs.70,000/-.
6. Similarly, this Court finds that person namely, Duni Chand (PW-4), who came to be associated as prosecution witness to prove sale of contraband by bail petitioner to the occupants of the car involved in the incident near village Ropa, has not supported the case of the prosecution. This witness while stating that police had come to his village Ropa and had asked the names of nearby villages has specifically stated that nothing happened in his presence. In his cross-
::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 7examination this witness denied that on 28.11.2017 police persons namely, Nitu Ram and HHC Rajiv Kumar got the places identified from accused Sunil Kumar on 28.11.2017. He also denied that police prepared memo Ex.PW2/F regarding .
identification of the spot at the instance of accused Sunil Kumar in his presence. This witness while admitting that he has put his signature on memo Ex.PW2/F in red circle-'A' has stated that his signatures were obtained on blank paper.
7. Most importantly, one of the independent witnesses namely, Anil Kumar associated by the police at the time of search of the car in question has totally denied the case of the prosecution by stating that he does not know from whose possession charas was recovered. This witness was declared hostile. Even in his cross-examination conducted by the public prosecutor nothing relevant could be elicited to the advantage of prosecution. This witness in his cross-
examination specifically denied that on 23.11.2017 police had associated him as well as Ayush Sharma as witness at place Sukibhai. Cross-examination conducted on this witness, if read in its entirety clearly suggest that he denied the case of the prosecution in toto and nothing had happened in his presence.
While admitting that he had signed Ex.PW1/A i.e. recovery memo in red circle 'A', this witness denied that three accused ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 8 also signed in his presence in red circle 'B'. In the cross-
examination conducted by learned counsel representing the accused, this witness admitted that nothing happened in his presence and police did not record his statement. This witness .
stated that he signed Ex.PW1/F and parcel Ex.P1 inside the Govt. vehicle in dark and police of police station Sadar is well acquainted with him.
8. HC Mukesh Kumar, who was entrusted with duty to bring some independent witness on the date of alleged incident by the SHO while deposing as PW-2 though in his examination-in-chief, has almost reiterated the case of the prosecution, but if his cross-examination is perused, his version put forth in his examination-in-chief becomes highly doubtful. In his entire cross-examination, this witness has not stated something specific with regard to nakka and recovery, rather has attempted to deny all the questions.
9. True, it is that one of the independent witness associated at the time of recovery namely, Ayush Sharma is yet to be examined, but having perused the statements of PW-
1, PW-2, PW-3 and PW-4, this Court finds substantial force in the submissions made by learned counsel for the petitioner that all the material prosecution witnesses have not supported the case of the prosecution. This Court finds from the record ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 9 that prosecution with a view to connect the present bail petitioner with the alleged crime has associated two independent witnesses namely, Bhimi Ram (PW-3) and Duni Chand (PW-4), but as has been taken note hereinabove, none .
of these witnesses have supported the case of the prosecution, rather statements, if any, made by these witnesses creates serious doubt with regard to involvement, if any, of the petitioner in the case at hand. No doubt, in the case at hand, commercial quantity of charas has been recovered and as such, rigor of section 37 are attracted, but at the cost of repetition, it may be noticed that recovery of commercial quantity of charas never came to be effected from the exclusive and conscious possession of the bail petitioner, rather he has been named in the FIR on the basis of disclosure made by the person from whose possession commercial quantity of charas came to be recovered. But since, at present there is no evidence, worth credence, available on record indicating involvement of the petitioner, there appears to be no justification to deny bail to the petitioner. Otherwise also, bare perusal of Section 37 of the Act, clearly suggests that there is no complete bar/prohibition to grant bail to the accused having found in possession of commercial quantity of contraband, rather court having afforded due opportunity of being heard to the public ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 10 prosecutor can proceed to grant bail even in the cases of commercial quantity, if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the act and secondly that he is not likely to commit any .
offence while on bail. Bail petitioner is behind the bars for more than three years and during this period despite there being specific directions issued by this Court, learned court below has not been able to conclude the trial, rather record reveals that till date out of 17 prosecution witnesses only five witnesses have been examined. Though, case has been listed for recording the statements of remaining prosecution witnesses on 29.12.2020, but having taken note of the fact that evidence in the cases pending before the trial Courts is being recorded in limited numbers on account of Covid-19, this Court has reason to believe and presume that considerable time would be consumed in the conclusion of the trial and as such, it would not be fair to curtail the freedom of the petitioner during the trial for indefinite period, especially when statements of majority of material prosecution witnesses stand already recorded coupled with the fact all witnesses of the recovery have not supported the case of the prosecution.
Though , learned Courts below on the instructions issued by this Court on administrative side have resumed normal work, ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 11 but still evidence is being recorded in limited numbers and as such, it would be unfair and unjust in case the petitioner is allowed to incarcerate in jail during trial for indefinite period.
10. Needless to say 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 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 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 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 ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 12 Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569)."
11. It has been repeatedly held by Hon'ble Apex Court .
as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Since 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, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during the trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent conditions.
12. 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 ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 13 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 appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: r 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 ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 14 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 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 ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 15 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
13. 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 ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 16 person for the propose of giving him a taste of imprisonment as a lesson."
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, bail is not to be withheld as 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.
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 on bail;
(v) character, behaviour, means, position and standing of the accused;::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 17
(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, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs.2.00 Lakh with two local sureties in the like amount each to the satisfaction of the learned trial Court/ Magistrate available at the station with following conditions:
(a) He shall make himself available for the purpose r 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
(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 violate any of the conditions imposed upon him, the ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP 18 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 this application alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma), Judge December 11, 2020 (shankar) ::: Downloaded on - 11/12/2020 20:18:24 :::HCHP