Amarjeet Alias Amru vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely Amarjeet alias Amru, who is behind bars since 11.7.2020 has approached this Court in the instant proceedings filed under

S.439 CrPC, for grant of regular bail in FIR NO. 105, dated 4.6.20, registered at Police Station Ghumarwin, District Bilaspur, Himachal Pradesh under

Ss. 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act. Pursuant to order dated 31.7.2020, respondent has filed status report, prepared

on the basis of investigation carried out by investigating agency, perusal whereof reveals that on 4.6.2020, car bearing registration No. HP-03A-3288

Alto 800 being driven by Sunil Kumar alias Manu came to be stopped by the Police for checking. After having seen police, occupants of car threw

something in the nearby bushes, which was subsequently recovered by the police in the presence of accused, which was found to be heroin/Chitta,

weighing 9.0 gram. Since no plausible explanation ever came to be rendered on record by the occupants of car in question, police after having

completed necessary codal formalities registered FIR in question against the accused persons i.e. Sunil Kumar, Sandeep Kumar and Onkar.

Subsequently, on the basis of CDR of mobiles phones used by accused named herein above, police found involvement of the bail petitioner and on

11.7.2020, bail petitioner was summoned to Police Station for interrogation. As per investigation, bail petitioner admitted before investigating agency

that he is a drug addict and as such, purchased Chitta heroin from Sunil Kumar alias Manu. As per investigation, bail petitioner also admitted that he

sent message on Whatsapp with regard to purchase of contraband from co-accused Sunil Kumar. On the basis of aforesaid admission made by bail

petitioner, police arrested him on 11.7.2020 and since then he is behind bars whereas, other accused including Sunil Kumar and Sandeep Kumar, from

whose conscious possession contraband was recovered, stand enlarged on bail. Bail petitioner filed bail application before learned Special Judge,

Bilaspur which came to be rejected on 2.7.2020 on the ground that there is already a case pending against the bail petitioner under Act ibid, as such, in

the event of being enlarged, bail petitioner may indulge in such activities again.

Learned Additional Advocate General, while fairly admitting the factum with regard to completion of investigation contends that though nothing

remains to be recovered form the bail petitioner, but keeping in view gravity of offence alleged to have been committed by him, he does not deserve

any leniency and as such prayer made by bail petitioner deserves to be rejected outrightly. While referring to the record, learned Additional Advocate

General contends that in the past also, petitioner was found involved in the sale and purchase of narcotics as such, one case under S.21 of the Act ibid

stands registered against him at Police Station Ghumarwin. Lastly, learned Additional Advocate General contends that in the event of bail petitioner

being enlarged on bail, he may not only flee from justice but may again involve in such activities again, as such, prayer for grant of bail at this stage

may be rejected.

Having heard learned counsel for the parties and perused the material available on record, this court finds that on the date of alleged offence i.e.

4.6.2020, 9.0 gram of Chitta/heroin was recovered from the conscious possession of co-accused Sunil Kumar alias Manu and Sandeep Kumar alias

Mintoo, who already stand enlarged on bail. In the case at hand, bail petitioner has been named in the FIR on the basis of alleged admission made by

him before police that he used to purchase drugs from Sunil Kumar. It is not in dispute that on the date of alleged offence, contraband never came to

be recovered form the conscious possession of bail petitioner. Though as per investigation bail petitioner admitted that on the date of alleged incident,

he had sent a message on Whatsapp, to co-accused Sunil Kumar with respect to purchase of heroin/Chitta from co-accused Sunil Kumar, but that

may not be sufficient to conclude complicity, if any, of bail petitioner at this stage in the commission of offence under S.29 of the Act ibid. Allegation

with regard to sale-purchase of contraband by the bail petitioner in connivance with other co-accused needs to be established on record by

investigating agency by leading cogent and convincing evidence.

Leaving everything aside, contraband is of intermediate quantity, as such, rigours of S.37 of the Act ibid are not attracted as such, there appears to

be no justification to keep the bail petitioner behind the bars, especially when other co-accused, from whose conscious possession contraband came to

be recovered, already stand enlarged on bail. No doubt, perusal of order dated 20.7.2020 passed by learned Special Judge, Bilaspur, rejecting bail

application reveals that a case under S.21 of the Act stands registered against the bail petitioner at Police Station Ghumarwin but since, guilt, if any, of

the bail petitioner in that case is yet to be determined in the totality of the evidence collected on record by the prosecution, mere pendency of said case

may not be a ground for this Court to deny bail to the bail petitioner. No doubt, offence alleged to have been committed by the bail petitioner is serious

in nature having adverse impact on the society but this court also cannot lose sight of the fact that, guilt, if any, of the bail petitioner is yet to be

determined in the totality of the evidence collected on record by the prosecution.

Hon'ble Apex Court and this Court in a catena of judgments have held that a person is deemed to be innocent, till the time his/her guilt is prove in

accordance with law. In the present case also, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on

record by the prosecution, as such, there is no justification for this Court to keep the bail petitioner behind the bars for an indefinite period during trial,

especially when nothing remains to be recovered form the bail petitioner. Apprehension expressed by learned Additional Advocate General that in the

event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions.

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 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.

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.

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.

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.â€​

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:-

“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.â€​

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.

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 4,0 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 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 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.â€​

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

(viii) danger, of course, of justice being thwarted by grant of bail.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be

enlarged on bail subject to furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety in the like amount, to the satisfaction of the

Investigating Officer/learned Magistrate available at the station, 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.

(e) He shall surrender passport, if any, held by him.

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.