Himachal Pradesh High Court
Akshay Kumar @ Ishu vs State Of Himachal Pradesh on 22 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.618 of 2024
.
Date of Decision: 22.07.2024
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Akshay Kumar @ Ishu ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner: Mr. K.S.Gill and Mr. Pankaj Mehta,
r Advocates.
For the Respondent: Mr. Anup Rattan, Advocate General
with Mr. Vishal Panwar, Mr.
B.C.Verma, Additional Advocate
Generals and Mr. Ravi Chauhan,
Deputy Advocate General.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely, Akshay Kumar @ Ishu, who is behind the bars since 17.04.2023, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C., for grant of regular bail in case FIR No. 52 of 2023, dated 17.04.2023, under Section 22-61-85 of the Narcotic Drugs and Psychotropic Substances Act ( for short 'Act'), registered at police Station, Puruwala, District Sirmour, Himachal Pradesh. Respondent-State has filed status report and HC Inderjeet Singh has come present alongwith the record. Record perused and returned.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 23/07/2024 20:31:50 :::CIS 22. Close scrutiny of the status report/record reveals that on 17.04.2023, police after having received secret information that .
petitioner herein indulged in illegal trade of narcotics and he is coming from Singhpura side on his scooty bearing registration No. UK-16-C-7428 carrying alongwith one box containing narcotics, laid nakka and stopped aforesaid scooty being driven by the petitioner for checking. After having associated independent witnesses, police besides causing personal search of the driver of the scooty(petitioner herein) also effected search of the box being carried by him in the scooty and allegedly recovered 119 bottles of prohibited drug namely, 'Beerex' containing "Codeine Phosphate".
Since, no plausible explanation ever came to be rendered on record qua the possession of aforesaid commercial quantity of contraband, police after completion of necessary codal formalities, lodged the FIR, as detailed hereinabove, and since then bail petitioner is behind the bars. Since, challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.
3. While fairly acknowledging factum with regard to filing of the challan in the competent Court of law, Mr. B.C.Verma, learned Additional Advocate General, contends that though nothing remains to be recovered from the bail petitioner, but ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 3 keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. He states .
that there is overwhelming evidence adduced on record suggestive of the fact that in past, petitioner had been indulging in these activities and as such, in the event of his being enlarged on bail, he may not only flee from justice, but may again indulge in these activities.
4. To the contrary, Mr. K.S.Gill, learned counsel representing the petitioner, states that the petitioner has been falsely implicated and as such, he deserves to be enlarged on bail.
He states that though there is no positive evidence, if any, adduced on record by the prosecution that on the date of alleged incident, 119 bottles of prohibited drug namely, 'Codeine Phosphate' were recovered, but even if aforesaid recovery is presumed to be correct, recovery of only 18 bottles can be said to be recovered from the petitioner for the reason that out of 119 bottles, only 18 bottles were sent for chemical analysis that too without making the entire contraband homogeneous. While making this Court peruse statements of independent witnesses associated by the police at the time of recovery, learned counsel for the petitioner states that none of the independent witnesses haa supported the case of the prosecution and as such, entire story put forth by the prosecution has become doubtful. He states that petitioner is behind the bars ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 4 for more than one year three months and till date, prosecution has been able to examine eight witnesses, out of 18 and as such, .
prayer made on his behalf otherwise deserves to be allowed on the ground of inordinate delay in conclusion of trial. He specifically invited attention of this Court to the judgment dated 9.4.2024 passed by this Court in Cr.MP (M) No.473 of 2024, titled as Leeladhar versus State of Himachal Pradesh, whereby this Court having taken note of number of judgments passed by Hon'ble Apex Court, proceeded to grant bail in the case of commercial quantity on the ground of inordinate delay in conclusion of trial.
5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that one box containing 119 bottles of prohibited drug, named hereinabove, was allegedly recovered from the scooty that too in the presence of independent witnesses and as such, this Court is not persuaded to agree with learned counsel for the petitioner that petitioner has been falsely implicated. However, having taken note of the fact that out of 119 bottles, only 9 bottles were sent for chemical analysis and as such, recovery, if any, of 9 bottles can be said to have been made from the conscious possession of the bail petitioner.
6. Careful perusal of the status report clearly reveals that though 18 bottles were taken out from the box for chemical ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 5 analysis, but ultimately nine bottles were sent to the FSL for chemical analysis. Since only 9 bottles, out of 119 bottles, were .
sent for chemical analysis and there is nothing on record to prove contents of remaining bottles, this Court is persuaded to agree with learned counsel for the petitioner that recovery, if any, can be said to be of 9 bottles, not 119 bottles. There is another aspect of the matter that bail petitioner is behind the bars for more than 1 year nine months, but till date, prosecution has not been able to record the statements of all the prosecution witnesses, as a result thereof, freedom of petitioner is being curtailed for indefinite period during trial, which is otherwise not permissible under law.
7. No doubt, commercial quantity of contraband came to be recovered from the box being carried by the petitioner and as such, rigours of Section 37 are attracted, but bare perusal of Section 37 of the Act clearly reveals that there is no complete bar for the court to grant bail in the cases involving commercial quantity, but court while doing so, at the first instance is required to provide adequate opportunity of being heard to the public prosecutor and thereafter, if it has reason to presume and believe that the person, seeking bail, has been falsely implicated and there is no likelihood of his indulging in such activities again, it can proceed to grant bail in cases involving commercial quantity of contraband. Moreover, this Court after having perused the ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 6 statements made by PW-2, Alok and PW-3, Saurabh, associated by the police at the time of the time of recovery, finds that none of .
witnesses to the recovery has supported the case of the prosecution with regard to recovery of contraband from the conscious possession of the petitioner. Both the aforesaid witnesses have turned hostile and if cross-examination conducted upon these witnesses, is perused, it cannot be said that prosecution has been able to extract anything contrary to what these witnesses stated in their examination-in-chief.
8. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
"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 Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
9. Reliance is placed upon judgment passed by Hon'ble Apex Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:
::: Downloaded on - 23/07/2024 20:31:50 :::CIS 7"18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the .
restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
10. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
"2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed."
11. In the aforesaid judgment, Hon'ble Apex Court has held that while considering the prayer for grant of bail, Courts are ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 8 expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no .
likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
12. 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. At this stage, learned Additional Advocate General while inviting attention of this Court to the judgment passed by Hon'ble Apex Court in Gurwinder Singh vs. State of Punjab(2024 INSC 92), states that merely delay in trial pertaining to grave offence as one involved in the instant case cannot be used as a ground to grant bail. Before ascertaining the merit of aforesaid submission made by learned Additional Advocate General, it may be apt to take note of following para of the ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 9 judgment rendered by Hon'ble Apex Court in Gurwinder Singh case hereinbelow:-
.
"32. The Appellant's counsel has relied upon the case of KA Najeeb (supra) to back its contention that the appellant has been in jail for last five years which is contrary to law laid down in the said case. While this argument may appear compelling at first glance, it lacks depth and 22 substance. In KA Najeeb's case this court was confronted with a circumstance wherein except the respondent-accused, other co-accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore this court's decision to consider bail was grounded in the anticipation of the impending sentence that the respondent accused might face upon conviction and since the respondent-accused had already served portion of the maximum imprisonment i.e., more than five years, this court took it as a factor influencing its assessment to grant bail. Further, in KA Najeeb's case the trial of the respondent-accused was severed from the other co- accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore this court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. 23 Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted."
13. No doubt, in the aforesaid judgment, Hon'ble Apex Court has held that mere delay in trial pertaining to grave offences as one involved in that case cannot be used as a ground to grant bail, but before applying ratio of aforesaid judgment in the case at hand, if any, it needs to be noted that facts of the case before ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 10 Hon'ble Apex were all together different from the facts of the present case. In the case before the Hon'ble Apex Court the .
petitioner was accused of her being involved in terrorist activities backed by the members of banned terrorist organization, involving exchange of large quantum of money through different channels, whereas in the present case petitioner is accused of having smuggled commercial quantity of contraband, which fact is otherwise yet to be established on record by leading cogent and convincing evidence. Moreover, this Court finds that after passing of aforesaid judgment in Gurwinder Singh case(supra), Hon'ble Apex Court in another case tilted Soma Kanti Sen vs. The State of Maharashtra and another, Cr. Appeal No.2595 of 2023, decided on 5.4.2024, has reiterated that Constitution Court is not strictly bound by the prohibitory provisions of grant of bail in the 1967 Act and can exercise its constitutional jurisdiction to release an accused on bail, who has been incarcerated for a long period of time relying on Article 21 of the constitution of India. Aforesaid finding returned by Hon'ble Apex Court is based upon the judgment earlier rendered by Hon'ble Apex Court in K. A. Najeeb vs. Union of India (2021) 3 SCC 713.
14. 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. In the ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 11 case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this .
Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional 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.
15. 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.
16. 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 cannot be curtailed for indefinite period, especially when his/her guilt is yet to be ::: Downloaded on - 23/07/2024 20:31:50 :::CIS 12 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.
17. 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.
18. 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 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.
::: Downloaded on - 23/07/2024 20:31:50 :::CIS 1319. 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.
20. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 2,00,000/-
with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/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 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 his passport, if any, before the investigating agency.::: Downloaded on - 23/07/2024 20:31:50 :::CIS 14
21. 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.
22. 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.
23. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
(Sandeep Sharma) Judge July 22, 2024 (shankar) ::: Downloaded on - 23/07/2024 20:31:50 :::CIS