Himachal Pradesh High Court
Devi Singh vs State Of Himachal Pradesh on 10 July, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
Cr.MP(M) No.1063 of 2020 a/w
Cr.MP(M) Nos.1069, 1070 and 1071 of 2020
Decided on: 10.7.2020
____________________________________________________________
1. Cr.MP(M) No.1063 of 2020
Devi Singh ...........Petitioner
Versus
State of Himachal Pradesh
2. Cr.MP(M) No.1069 of 2020
Param Dev
r to Versus
..........Respondent
...........Petitioner
State of Himachal Pradesh ..........Respondent
3. Cr.MP(M) No.1070 of 2020
Dayalu Ram ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
4. Cr.MP(M) No.1071 of 2020
Mani Ram ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
1 Whether the reporters of the local papers may be allowed to see the judgment?
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2
For the Petitioner(s) : Mr. G.R.Palsra & Mr. H.S. Rangra,
Advocates.
.
For the Respondent : Mr. Ashok Sharma, Advocate
General, with Mr. Arvind Sharma,
Additional Advocate General and
Mr. Kunal Thakur, Deputy
Advocate General.
____________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioners, namely Devi Singh, Param Dev, Dayalu Ram and Mani Ram, have approached this Court in the instant proceedings filed under Section 438 CrPC for grant of interim bail in connection with FIR No. 86/2019, dated 28.09.2019 under Section 20of the NDPS Act (in short "the Act"), registered at PS Janjehali, District Mandi, H.P.
2. Sequel to orders dated 7th/8th July, 2020, respondent State has filed status report prepared on the basis of the investigation carried out by the Investigating Agency, perusal whereof reveals that on 28.9.2019 police patrolling party while going towards muhal Trashun Khud, Bhenchri, discovered cultivation of cannabis on the fields owned and possessed by the ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 3 bail petitioners. After having discovered aforesaid fact police associated officials from the revenue department as well as .
independent witnesses from the locality and confiscated 719 plants allegedly cultivated on the land bearing khasra No.644, 648, 646, 650 and 651. Police party after having informed higher authorities, destroyed 709 plants of cannabis, whereas sent 10 plants to FSL for chemical analysis. Report received from RFSL reveals that the plants sent for chemical analysis were found to be sample of cannabis. Since, no plausible explanation came to be rendered on record on behalf of the persons, owing and possessing khasra numbers, as detailed hereinabove, police after completion of codal formalities, registered the FIR, as detailed hereinabove, against the bail petitioners.
3. Mr. Kunal Thakur, learned Deputy Advocate General while fairly admitting the factum with regard to joining of investigation by the bail petitioners, contends that though nothing remains to be recovered from the bail petitioners, but ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 4 keeping in view the gravity of offence alleged to have been committed by them, they do not deserve any leniency. Learned .
Deputy Advocate General further contends that since land of khasra No.644, 648, 646, 650 and 651 is still joint inter se the co owners, appropriate application is being filed by Investigating Agency to the revenue authorities for demarcation, so that specific portion of land in possession of each bail petitioners is ascertained and as such, at this stage, it may not be proper to enlarge them on interim bail.
4. Having heard learned counsel representing the parties and perused the status report made available to this Court, this Court finds that police in the presence of revenue officials as well as other two independent witnesses confiscated 719 plants of cannabis illegally cultivated by the owners of the land, as described hereinabove. Though in the case at hand, Investigating Agency has stated that all the bail petitioners have admitted the factum of their possession over the land in ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 5 question, but it is not in dispute that land over which illegal cultivation of cannabis was done by the bail petitioners is still .
joint inter se various cosharers and as such, it would be too early to conclude guilt, if any, of the bail petitioners. Steps, if any, for moving an appropriate application for demarcation is to be filed by Investigating Agency and in this regard, no embargo and impediment can be created by the bail petitioners, who otherwise have been joining the investigation regularly, as has been fairly admitted by the learned Deputy Advocate General. As per status report of the Investigating Agency khasra Nos. 644, 646, 651 are in the name and possession of bail petitioners namely, Mani Ram and Dayalu Ram, who are 8085 years old, respectively.
Persons named hereinabove, have disclosed to the police that they on account of their old age are no more doing agriculture work, rather cultivation, if any, on the land in question has been done by their family members. Similarly, bail petitioner Param Dev has claimed before the police that he is not in owner of any ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 6 of the khasra numbers, as mentioned in the FIR and as such, this Court is in agreement with Mr. G.R.Palsra and Mr. .
H.S.Rangra, learned counsel representing the bail petitioners that ill the time land is partitioned and specific share, if any, of cosharers is ascertained, guilt if any, of the petitioner cannot be concluded or established. Leaving everything aside, investigation in the case is almost complete and nothing remains to be recovered from the bail petitioners and as such, r no fruitful purpose would be served by sending the bail petitioners for custodial interrogation, especially when they have made themselves available for for investigation.
5. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but keeping in view the aforesaid aspects of the matter, this Court sees no reason to curtail the freedom of an individual for an indefinite period, especially when nothing remains to be ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 7 recovered from them. Apprehension expressed by the learned Deputy Advocate General that in the event of petitioner's being .
enlarged on bail, they may flee from justice, can be best met by putting the bail petitioners to the stringent conditions as has been fairly stated by learned counsel for the bail petitioner.
6. The Hon'ble Apex Court as well as this Court in catena of judgments have held that till the time a person is not found guilty, he/she is deemed to be innocent. In the case at hand also, guilt, if any, of the petitioners is yet to be ascertained in accordance with law.
7. By now it is well settled that gravity alone cannot be 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.
::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 88. 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has categorically held that 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.
9. 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 ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 9 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 has 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:
"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 ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 10 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 ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 11 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 ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 12 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.
See. Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496
10. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bonds in the sum of Rs.
1,00,000/ with one surety in the like amount each to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 13
(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They 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) They shall not leave the territory of India without the prior permission of the Court.
(e) They shall handover passport to the Investigating Agency.
11. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
12. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and ::: Downloaded on - 10/07/2020 20:52:45 :::HCHP 14 shall remain confined to the disposal of these applications alone.
The petition stands disposed of accordingly .
.
Copy dasti.
(Sandeep Sharma),
Judge
10th July, 2020
(shankar)
r to
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