Ashok Kumar vs State Of H.P

Sandeep Sharma, J

Bail petitioner, namely, Ashok Kumar, who is behind the bars for more than 2½ years has approached this Court in the instant proceedings under Section 439 of Cr.P.C. for grant of regular bail, in case FIR No. 145 of 2020, dated 18.9.2020, under Sections 21,29 of the Narcotic Drugs & Psychotropic Substances Act( for short ‘Act’).

In terms of order dated 11.5.2023, respondent-State has filed the status report and Mr. Maan Dass, ASI, Police Station, Paonta Sahib, District Sirmaur, Himachal Pradesh has come present along with the record. Record perused and returned to the said officer. Close scrutiny of the record/status report reveals that on 18.9.2020 police after having received a secret/telephonic information that Karamjeet son of Shri Harmail Singh resident of village Badripur, Paonta Sahib indulges in illegal trade of narcotics and he has sent present bail petitioner, Ashok Kumar, to Haryana for bringing contraband on his motorcycle bearing registration No.HP-17A-8677 TVS, constituted a team and stopped the aforesaid motorcycle at Behraal Barrier and recovered 1800 capsules of “PYN SPA Plus” containing prohibited drugs. Since, no plausible explanation came to be rendered on record qua the possession of aforesaid prohibited contraband, police after completion of necessary codal formalities registered the FIR, as detailed hereinabove against the bail petitioner and since then, he is behind the bars. Since, investigation in the case is complete and nothing remains to be recovered from the petitioner coupled with the fact that till date evidence of prosecution has not yet commenced, the petitioner has approached this Court in the instant proceedings for grant of regular bail.

While fairly acknowledging the factum with regard to filing of challan in the competent Court of law, Mr. Rajan Kahol, learned Additional Advocate General states that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. He further states that there is overwhelming evidence adduced on record that petitioner in connivance with co-accused Karmjeet Singh indulged in illegal trade of narcotics having adverse impact on the society, it may not be in the interest of justice to enlarge the bail petitioner on bail because in the event of his being enlarged on bail, he may not only flee from justice, rather may again indulge in such kind of activities. He further states that since Court has already fixed the matter for recording the statements of prosecution witnesses on 27.07.2023, the petitioner cannot claim bail on the ground of inordinate delay in conclusion of trial.

Having heard the learned counsel representing the parties and perused the material on record, this Court finds that commercial quantity of contraband came to be recovered from the conscious possession of bail petitioner in the presence of independent witnesses, as such, it cannot be said that he has been falsely implicated. However, having taken note of the fact that the bail petitioner is behind the bars for more than 2½ (two and a half years), and till date prosecution has not been able to examine even a single witness, this Court sees reason to consider prayer made on behalf of petitioner for grant of bail on account of inordinate delay in conclusion of trial.

No doubt, rigors of section 37 of the Act are attracted in the present case because commercial quantity of contraband came to be recovered from the conscious possession of one of the accused but bare perusal of provisions contained under Section 37 nowhere suggests that Court cannot grant bail in cases involving commercial quantity, rather in such cases court after having afforded due opportunity of hearing to public prosecutor can proceed to enlarge the petitioner-accused, if it is satisfied that he/she has been falsely implicated and in the event of bail, he/she will not indulge in such activities again.

No doubt, in the instant case, learned counsel for the petitioner has been able to point out certain circumstances suggestive of the fact that at present, there is no concrete evidence to connect the bail petitioner with the contraband. Moreover, there is no material available on record suggestive of the fact that in past bail petitioner had been indulging in these activities and as such, there is no likelihood of the petitioner indulging in illegal trade of narcotics, if ordered to be enlarged on bail. Leaving everything aside, this Court finds that bail petitioner is behind the bars for more than 2½ (two and a half years) that too without being held guilty, meaning thereby that the petitioner can be believed to be innocent until found guilty, therefore, prayer made on behalf of the petitioner for grant of bail deserves to be considered on the ground of delay in trial.

Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, , who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.

Placing reliance upon aforesaid judgments, a Co-ordinate Bench of this court in Cr.MP(M) No. 1328 of 2022 titled Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022, also ordered for enlargement of an accused, who was allegedly apprehended carrying commercial quantity of Tramadol, on the ground of delay in conclusion of trial.

Apart from above judgment, Co-ordinate Bench of this court while granting bail vide order dated 22.3.2021 in CrMP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal Pradesh, also placed reliance upon a judgment delivered by a three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit Singh Moni v. State of Himachal Pradesh, decided on 12.10.2020, wherein petitioner was allegedly found in possession of 3285 grams of charas from a vehicle, wherein four other persons were sitting.

Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there as no further progress in the trial.

Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail.

The learned Counsel appearing for the petitioner submits that in Mohit Aggarwal, huge commercial quantity of 20 kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas, in the present case, the recovered quantity is little more than the commercial quantity.

In similar circumstances, in Cr.MP(M) No. 1255 of 2022, titled Puran Chand v. State of Himachal Pradesh, decided on 28.7.2022, a Co-ordinate Bench of this Court, having taken note of inordinate delay in conclusion of trial, ordered enlargement on bail of the person, who was apprehended with 1.996 kg of charas.

In the instant case, bail petitioner is behind bars more than 2½ (two and a half years) and till date, trial has not commenced and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial, keeping in view the fact that the bail petitioner is a first offender and there is no other case against him, apart from the present one.

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. Apprehension expressed by learned Assistant 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.

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.2.00 lac with two local sureties 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.

A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.