Asrail vs State Of Himachal Pradesh

Sandeep Sharma, J

Through Video Conferencing.

By way of present petition filed under Section 439 of Cr.PC, prayer has been made on behalf of the bail petitioner namely Asrail, who is behind bars since 12.06.2019, for grant of regular bail in connection with FIR No. 132/19, dated 12.06.2019 under Sections 21 of ND&PS Act (in short "the Act") registered at P.S. Sadar, District Bilaspur, H.P.

Perusal of status report having been filed by the respondent-State reveals that on 11.06.2019, police party present on the Nakka laid at Nouni Chowk, NH 205, stopped a HRTC bus bearing registration No. HP-69-5368 for checking. Since occupant of seat No. 36, namely Asrail, got perplexed after having seen the police, police conducted his search in the presence of independent witnesses and allegedly, recovered 39.35 grams of Heroin from his seat. Police after completion of necessary codal formalities, lodged aforesaid FIR against the bail petitioner on 12.06.2019 and since then, he is behind the bars.

Sh. Kunal Thakur, learned Deputy Advocate General, while fairly admitting factum with regard to filing of challan before the trial court, contends that though nothing remains to be recovered from the bail petitioner, but having taken note of his antecedents, he is not entitled for bail. Mr. Thakur, further contends that though trial has commenced and nothing remains to be recovered from the bail petitioner, but it may not be in the interest of justice to enlarge the petitioner on bail at this juncture, who in the event of his being enlarged on bail may not only flee from justice, rather there is every possibility of his committing the crime again and as such, his prayer for bail may not be considered at this stage. Mr. Thakur, also contends that apart from case at hand, one case under the provisions of NDPS Act, stands already registered against the bail petitioner in the State of Rajasthan and as such, it would not be in the interest of justice to enlarge the bail petitioner on bail.

Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of the alleged incident, 39.35 grams of Heroin came to be recovered from the seat of the bail petitioner and as such, there is no force in the submissions of Mr. V.S. Chauhan, learned Senior Counsel, representing the bail petitioner that bail petitioner has been falsely implicated. However, taking note of the fact that alleged contraband never came to be recovered from the person or from the belongings of the petitioner, this Court is of the view that till the time guilt of accused is not proved in accordance with law, it would be premature to conclude his complicity in the crime alleged to have been committed by him.

Leaving everything aside, this Court finds that alleged quantity of contraband, i.e. 39.35 grams of Heroin allegedly recovered from the seat of the bail petitioner is ' intermediate' and as such rigors of Section 37 of the Act are not attracted in the present case. The bail petitioner is already behind the bars for more than 15 months and as such, indefinite incarceration of petitioner during trial would amount to pre-trial conviction. No doubt, record reveals that one case under the provisions of NDPS Act stands already registered against the bail petitioner in the State of Rajasthan, but guilt, if any, of him in that case is yet to be established on record and as such, mere pendency of that case cannot be made basis to reject the prayer made in the instant application, especially when no concrete material has been placed on record by Investigating Agency, suggestive of the fact that petitioner has been indulging in the illegal trade of narcotics and in the event of his being enlarged on bail, he may again indulge in the said activity.

As per statement made by learned Deputy Advocate General, two prosecution witnesses have been examined, meaning thereby that final conclusion of the trial would take longer time. Otherwise also, trial of the accused is likely to be further delayed on account of prevailing conditions in the wake of COVID-19. Though, in terms of instructions issued by this Court on administrative side, lower Courts have resumed normal working and also started recording the evidence, but in limited number (s) and as such, it can be safely presumed that considerable time would be consumed in the conclusion of the trial of the petitioner and as such, there appears to be no justification let the bail petitioner incarcerate in jail for an indefinite period during the trial, especially, when he has already suffered for more than 15 months. The Hon'ble Apex Court as well as this Court in catena of cases have repeatedly observed/held that one is deemed to be innocent till the time his/her guilt is not proved in accordance with law. In the case at hand, guilt, if any, of the petitioner is yet to be proved in accordance with law and as such, prayer made on behalf of petitioner for grant of bail deserves to be considered.

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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be 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 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.

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, 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.

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation ( 2012)1 Supreme Court Cases 49; 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."

In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-

" This Court in Sanjay Chandra v. CBI, 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 or 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 to 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 ad 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 the 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."

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. 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 the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, bail petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with 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 handover passport, if any, to the Investigating Agency.

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 application alone. The petition stands accordingly disposed of.

Dasti on usual terms.