Amarjeet Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner Amarjeet Singh, who is behind the bars since 16.10.2021 has approached this court by way of instant petition filed under S. 439 CrPC, for grant of regular bail in FIR No. 228 of 2021, dated 16.10.2021 registered at Police Station Ghumarwin, under S. 21 of the Narcotic Drugs and Psychotropic Substances Act. Pursuant to order dated 25.7.2022 respondent-State has filed status report. Investigating Officer has come present with record. Record perused and returned.

Perusal of record/status report reveals that on 16.10.2021, police party present in Ghumarwin Bazaar, found conduct of one person i.e. bail petitioner suspicious as he, after seeing police tried to run away, deemed it necessary to cause his personal search. As per police said person, while running from spot, threw one polythene bag in the nearby drain and as such, they after having apprehended the bail petitioner, conducted his personal search as well as search of carry bag allegedly thrown by him in the drain and recovered 40.48 grams of Chitta/Charas. Since no plausible explanation came to be rendered on record by the bail petitioner qua possession of the aforesaid intermediate contraband, police after completion of necessary codal formalities, lodged FIR as detailed herein above, and since then the bail petitioner is behind the bars. Since Challan stands filed in the competent court of law, the bail petitioner has approached for grant of regular bail.

While fairly admitting factum with regard to filing of Challan in the competent court of law, Mr. Sudhir Bhatnagar, learned Additional Advocate General submits that though nothing remains to be recovered from bail petitioner but keeping in view gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and his prayer for bail deserves outright rejection. While making this court peruse the record, learned Additional Advocate General submits that in the past, two cases already stand registered against the bail petitioner under the Act ibid, as such, there is reason to believe that he is not a drug addict but has become a drug peddler, as such, it may not be in the interests of justice to enlarge him on bail at this stage, because in the event of being enlarged, he may not only flee from justice but may also tamper with prosecution evidence.

Having heard learned counsel for the parties and perused the material available on record, this court finds that the alleged recovery of contraband i.e. 40.40 grams of Chitta/Hashish never came to be effected from the conscious possession of the bail petitioner rather, same came to be recovered from the bag allegedly thrown by the bail petitioner in nearby drain. Though, as per prosecution, police effected recovery of contraband in the presence of independent witness but there is no evidence on record suggestive of the fact that independent witness associated by the police, had an occasion to see the bail petitioner throwing the carry bag containing the contraband in the nearby drain. Moreover, contraband allegedly recovered from the carry bag thrown by the bail petitioner is of an intermediate quantity and as such, rigors of S. 37 of Act are not attracted.

No doubt, status report reveals that in the past two cases under the Narcotic Drugs and Psychotropic Substances Act, stand registered against the bail petitioner, but that cannot be a ground at this stage to decline prayer of the bail petitioner for grant of bail, especially when no steps ever came to be taken by the respondent State for getting the bail granted to the bail petitioner in such cases after lodging of FIR cancelled. It is during proceedings of the present case, that the plea of pendency of cases has been taken, but no material has been placed on record to show that any steps have been taken by the prosecution to get the bail granted to the bail petitioner in pending cases cancelled.

Leaving everything aside, the question whether the bail petitioner, after having seen the police threw the bag containing contraband in nearby drain, needs to be proved in accordance with law by leading cogent and convincing evidence and as such, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. FIR was lodged on 16.10.2021 whereas, till date, prosecution evidence has not commenced, as such, delay is likely to be caused in the conclusion of trial.

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 petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to curtail the freedom of the bail petitioner 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.

Needless to say that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under Art. 21 of Constitution of India. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-

“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).”

No doubt, it has come in the status report filed by investigating agency that there are cases pending against the bail petitioner, but that can not be a ground to deny bail to the bail petitioner. Hon'ble Apex Court in Maulana Mohammed Amir Rashadi v. State of U.P. (2012) 2 SCC 382 has held that merely on the basis of criminal antecedents, the claim of the bail petitioner cannot be rejected. Hon'ble Apex Court has observed as under:

“10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.”

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. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.1,00,000/- with two local sureties each, in the like amount, to the satisfaction of the learned trial Court, 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.