Himachal Pradesh High Court
Diwan Chand vs State Of Himachal Pradesh on 3 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1632 of 2019
Decided on September 3, 2019
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Diwan Chand ...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. N.S. Chandel, Senior
Advocate with Mr. Deepak Gupta,
Advocate.
For the respondent Mr. Sudhir Bhatnagar and Mr.
r Sanjeev Sood, Additional
Advocates General with Mr.
Kunal Thakur, Deputy Advocate
General.
Shri Mukesh Kumar, Dy.SP.
Crime, Bharari with HC Joginder
Singh.
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Sandeep Sharma, J. (Oral)
Bail petitioner, Diwan Chand, has filed the instant petition under S.438 CrPC, for grant of anticipatory bail in connection with FIR No. 6, dated 19.1.2015, under S.20 of the Narcotic Drugs & Psychotropic Substances Act, registered with Police Station, State CID, Bharari, Shimla, Himachal Pradesh.
2. Sequel to orders dated 28/30.8.2019, Shri Mukesh Kumar, Dy.SP. Crime, Bharari with HC Joginder Singh has come present with the record. Mr. Kunal Thakur, learned Deputy 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 2Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation .
carried out by it. Record perused and returned.
3. Perusal of record/status report reveals that on 19.1.2015, SHO, Police Station, State CID, Bharari, Shimla, received a Rukka from Inspector Lal Singh i.e. Investigating Officer, State CID, Mandi stating therein that on 19.1.2015, when he was present with the investigating team at Talgar Bridge near Urla National Highway, at 6.30 pm, a person wearing black jacket and grey pants, came towards the road from Ghatasani side. Said person was carrying a rucksack in his right hand. Inspector having suspicion tried to stop the person but that person left behind his rucksack and fled from the spot. Though police officials tried to apprehend him but said person escaped. Police opened the bag and allegedly recovered charas, which on weighment was found to be 1.5 Kg. Police also recovered a mobile phone of Nokia make, number whereof was found to be 94593- 22871. On the basis of aforesaid Rukka, complainant Lal Singh prayed for registration of case under S.20 of the Act ibid against unknown person. Formal FIR, as detailed herein above came to be lodged in Police Station State CID, Bharari.
4. During investigation, police found that telephone found in the bag containing charas belonged to a person namely Lalit. On investigation, Lalit informed the police that though SIM ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 3 of the phone in question is in his name, but phone is being used by his uncle, Diwan Chand. On 19.1.2015, police investigated the .
bail petitioner, who disclosed that on 18/19.1.2015, he had lost his phone but he did not lodge any report qua the same. Police party, which was present at the time of alleged recovery expressed their inability to recognize the bail petitioner, Diwan Chand. Bail petitioner also made available proceedings of Gram Panchayat Latraan to demonstrate that on the date of alleged incident, he was present in the office of Gram Panchayat Latraan, being its Vice President. FSL Junga, in its report held the contraband to be a sample of charas but since the police failed to identify and apprehend the actual culprit, vide communication dated 28.1.2016, it prepared Untrace Report and sent the same to the Superintendent of Police. On 6.5.2017, Superintendent of Police ordered further investigation. During fresh investigation, police found that mobile number 94593-22871 recovered from the rucksack containing contraband was actually being used by bail petitioner on the date of alleged incident. It has been stated in the status report that Call Detail Record pertaining to that period reveals that on the date of alleged incident, bail petitioner was using mobile number, 94593-22871 till 3.37 am. Apart from above, a few persons from the locality also disclosed to the police that on the date of alleged incident, they had telephonic talk with the bail petitioner on the mobile number 94593-22871. As per ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 4 investigation, bail petitioner Diwan Chand was present in the proceedings of Gram Panchayat held after alleged incident.
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Investigation further reveals that bail petitioner despite having received notice from State CID, Shimla failed to make himself available for investigation. It appears that bail petitioner instead of joining investigation, approached this Court by way of instnt petition seeking anticipatory bail.
5. Mr. Kunal Thakur, learned Deputy Advocate General, while opposing prayer made in the petition for grant of bail, strenuously argued that keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency. Mr. Thakur, further contended that it stands duly proved on record that on the date of alleged incident, it was bail petitioner, who after having seen police fled from the spot leaving behind his rucksack. Mr. Thakur, further contended that since commercial quantity of contraband i.e. 1.5 Kg Charas came to be recovered from the rucksack left behind by the bail petitioner, rigors of S.37 of the Act are attracted in the present case as such, petition filed by bail petitioner deserves to be dismissed.
6. Mr. N.S. Chandel, learned Senior Advocate duly assisted by Mr. Vinod Gupta, Advocate, appearing for the bail petitioner, while making this Court peruse the record/status report, contended that it has specifically come in the ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 5 investigation that persons/police officials, who had claimed to have laid Naka and seen the person fleeing from the spot, failed .
to identify the bail petitioner, who allegedly left behind the phone at the time of alleged incident. Mr. Chandel further contended that at this stage, there is no evidence to connect the bail petitioner with the alleged recovery of contraband as such, he deserves to be enlarged on bail. Mr. Chandel, further contended that though the Call Detail Record for the period in question produced by the investigating agency is seriously doubtful because it is not understood that after such a long delay, how the investigating agency could procure Call Detail Record but even otherwise as per the investigation itself, bail petitioner was using mobile number 94593-22871 till 3.37 am on 18/19.1.2015 whereas, alleged incident took place at 6.30 pm on 19.1.2015, as such, statement, if any, made by some persons that they had telephonic conversation with the bail petitioner is of no consequence. Lastly, Mr. Chandel contended that since bail petitioner has already joined the investigation and nothing remains to be recovered from, he deserves to be enlarged on bail.
7. Having heard learned counsel for the parties and perused the material available on record, this court finds that as per own case of investigating agency, police officials present on the spot had actually seen the person fleeing from the spot but interestingly, police officials subsequently were unable to ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 6 recognize the person, who as per fresh investigation had fled away from the spot leaving his rucksack containing commercial .
quantity of Charas. Since Police failed to trace the person, who allegedly left behind phone in question alongwith rucksack containing alleged contraband, it proceeded to file Untrace Report on 28.1.2016, whereafter, Superintendent of Police ordered further investigation. As per fresh investigation police has found that on the date of alleged incident, phone in question was being used by bail petitioner who while candidly admitting that he was using phone, stated to the police that he had lost his phone on 18/19.1.2015. No doubt, police has recorded statements of a few persons, who claimed that they had telephonic talk with the bail petitioner on the date of alleged incident, but there is no reference to the time, if any, in the statements, which is very crucial. As per own investigation, person using SIM No. 94593- 22871 lastly talked on 3.35 am whereas alleged recovery was made at 6.30 pm. Since identity of the person who allegedly fled away from the spot leaving behind rucksack containing commercial quantity of contraband, is doubtful, this Court sees no reason to keep the bail petitioner behind the bars especially when he has already joined the investigation. Identity of the accused on the spot has been further made doubtful by the police officials, who subsequently refused to recognize bail petitioner, as ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 7 such, freedom of bail petitioner cannot be allowed to be curtailed for an indefinite period during trial.
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8. More over, FIR in the case at hand came to be filed on 19.1.2015 but even after expiry of four and a half years, police has not been able to trace the actual culprit. At the first instance, police officials investigating the case made no sincere efforts to find out the actual culprit rather, members of police party could not identify the accused on the ground that incident is eleven months old. Though, in the case at hand, Superintendent of Police ordered further investigation on 6.5.2017, but even in the last two and half years, no headway has been made and it appears that it is only after filing of the instant bail petition, that the police have sprung into action. So far rigors of S.37 of the Act ibid are concerned, same may not be applicable in the present case since the contraband allegedly recovered in the case never came to be recovered from the conscious possession of the bail petitioner, rather, he has been named in the FIR on the basis of mobile phone allegedly recovered from the spot.
9. Though aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but this Court, having noticed aforesaid glaring aspects of the matter sees no reason for custodial interrogation of the bail petitioner.
::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 810. Apprehension expressed by the learned Additional Advocate General that in the event of enlargement on bail, the .
bail petitioner may flee from justice, can be best met by putting the bail petitioner to stringent conditions. Otherwise also, Hon'ble Apex Court and this Court have repeatedly held that till the time, guilt of an individual is proved in accordance with, he/she is deemed to be innocent. In the case at hand, guilt, if any, of the bail petitioner, who has otherwise joined the investigation, is yet to be determined in the totality of the evidence collected on record by the prosecution.
11. 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 ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 9 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 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 ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 10 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 Re-Inhuman Conditions in 1382 Prisons."
12. 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:-
::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 11"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 propose of giving him a taste of imprisonment as a lesson."::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 12
13. 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 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.
14. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an accused ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 13 has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated .
that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such r privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
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;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and ::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 14
(viii) danger, of course, of justice being thwarted by grant of bail.
16. In view of above, bail petitioner has carved out a case .
for himself. Present petition is allowed. In the event of arrest in the aforesaid FIR, bail petitioner is ordered to be released on bail, subject to his furnishing bail bonds in the sum of Rs.5,00,000/-
(Rs. Five Lakh) with two local sureties in the like amount, to the satisfaction of the Investigating Officer concerned, besides the following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the r 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 violates any of the conditions imposed upon him, the 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 petition alone.
::: Downloaded on - 29/09/2019 03:04:36 :::HCHP 15The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) .
Judge
September 3, 2019
(vikrant)
r to
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