Akshay Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, Akshay Kumar, who is behind the bars since 10.8.2021, has approached this court in the instant proceedings filed under S.439 CrPC, for grant of regular bail in FIR No. 82, dated 10.8.2021, registered at Police Station Banjar, District Kullu, Himachal Pradesh under Ss. 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter, 'Act')

Respondent State has filed status report in terms of order dated 20.10.2021. HC Deepak Kumar of Police Station, Banjar, District Kullu, Himachal Pradesh, has also come present with record/status report. Status report perused and returned.

Close scrutiny of record/status report reveals that on 10.8.2021, police stopped vehicle bearing registration No. HP-01B-0830 being driven by present bail petitioner. Apprehending that the person sitting next to the bail petitioner, in the car, may be possessing some suspicious substance, Police deemed it necessary to cause search of the vehicle as well as of the person sitting in car and allegedly recovered 1.107 kg of charas from the bag kept under the legs of person namely Ravinder Kumar. Since no plausible explanation came to be rendered qua possession of aforesaid quantity of contraband by present bail petitioner as well as the co- accused Ravinder Kumar, police after having registered FIR detailed herein above, took present bail petitioner and co-accused into custody. Since investigation is complete and nothing remains to be recovered from present bail petitioner, he has approached this court in the instant proceedings, praying therein for grant of regular bail.

Mr. Desh Raj Thakur, learned Additional Advocate General, while fairly admitting that nothing remains to be recovered from the present bail petitioner, states that keeping in view gravity of offence alleged to have been committed by the bail petitioner, he does not deserve leniency and as such, his prayer for bail deserves outright rejection. Mr. Thakur further submits that since commercial quantity of charas came to be recovered from car being driven by present bail petitioner, it cannot be said that he has been falsely implicated. Lastly, Mr. Thakur, submits that otherwise also, it may not be in the interest of justice to enlarge the petitioner on bail during pendency of trial, because in that event, he may not only flee from justice but may again indulge in such activities, as such, his prayer for grant of bail deserves outright rejection.

Having heard learned counsel for the parties and perused material available on record, this court finds that commercial quantity of charas came to be recovered from the bag kept under the legs of Ravinder Kumar, co-accused, while he was traveling in vehicle bearing registration No. HP-01B-0830 being driven by the present bail petitioner. As per own case of prosecution, Police, after having suspected that the co-accused may be carrying some suspicious substance, deemed it necessary to cause his personal search and allegedly recovered commercial quantity of contraband, from the bag kept under his legs. It is not in dispute that vehicle involved in the incident is a taxi, which at the relevant time was being driven by the present bail petitioner. There is no material worth credence available on record, suggestive of the fact that present bail petitioner had prior acquaintance, if any, with the co-accused Ravinder Kumar, from whose conscious possession commercial quantity of contraband came to be recovered. Call Detail Report placed on record reveals that aforesaid commercial quantity of contraband was purchased by co-accused Ravinder Kumar from one lady namely Kallu and in this regard, he was in constant touch with above named lady through his mobile phone. As per Call Detail Record, there is no conversation, if any, inter se present bail petitioner and lady namely Kallu, from whom, the co-accused allegedly purchased the commercial quantity of contraband.

Since in the case at hand, commercial quantity of contraband came to be recovered from the conscious possession of co-accused Ravinder, who was traveling in the car, as such rigours of S. 37 of act are attracted. However, careful perusal of aforesaid provision of law, nowhere suggests that there is complete bar/prohibition to grant bail in cases involving commercial quantity of contraband, rather, in such like cases, court after affording due opportunity of hearing to the Public Prosecutor, can proceed to grant bail in cases involving commercial quantity, if it is satisfied that the accused has been falsely implicated and there is no likelihood of his indulging in such activities again during trial. In the case at hand, this court having taken note of the fact that present bail petitioner was driving taxi coupled with the fact that contraband came to be recovered from the bag kept under legs of co-accused Ravinder Kumar and further that there is no call detail report suggestive of the fact that present bail petitioner was in constant touch with the supplier, namely Kallu, sees no reason to let bail petitioner incarcerate in jail for an indefinite period during trial. As per status report, no case in past stands registered against present bail petitioner, whereas, a case under the Act ibid, stands registered against co-accused, Ravinder Kumar, from whose conscious possession, commercial quantity came to be recovered, as such, petitioner otherwise being the first offender deserves leniency.

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 case at hand, complicity, if any, of the bail petitioners 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 of learned Additional Advocate General that in the event of the bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions.

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.

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.

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.

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.

In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with two local sureties in the like amount, to the satisfaction of the investigating officer, 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 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.

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.

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.

Copy dasti.