Budhi Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present petition filed under S.439 CrPC, prayer has been made on behalf of the bail petitioner namely Budhi Singh, who is behind bars since 14.11.2019, for grant of regular bail in case FIR No. 239, dated 14.11.2019, under Ss. 20 and 29 of Narcotic Drugs & Psychotropic Substances Act, registered with Police Station, Sadar, District Solan, Himachal Pradesh.

Sequel to order dated 2.5.2020, respondent-State has filed status report through email, which is taken on record. Mr. Sudhir Bhatnagar, learned Additional Advocate General and Mr. Kunal Thakur, learned Deputy Advocate General have put in appearance on behalf of the respondent-State through video-conferencing. Mr. Bhatnagar, learned Additional Advocate General contends that though the investigation is complete and nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to have been committed by bail petitioner, he does not deserve any leniency rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. Mr. Bhatnagar, learned Additional Advocate General contends that though, in the case at hand, recovery of contraband i.e. 1.654 kg Charas came to be effected from conscious possession of the co-accused, Lachhman, but since, at the time of alleged recovery, present bail petitioner, who was in the company of the co-accused, Lachhman, tried to run away from the spot on seeing the police party, it cannot be said that the bail petitioner is not involved in the commission of the offence punishable under Ss. 20 and 29 of the Act ibid. Lastly, learned Additional Advocate General contends that since the bail petitioner is a native of Nepal, it would be difficult to secure his presence during trial, as such, his prayer for bail may be rejected.

Mr. V.S. Chauhan, learned Senior Advocate duly assisted by Mr. Ajay Chauhan, Advocate through video-conferencing, while refuting aforesaid submissions having been made on behalf of learned Additional Advocate General, submits that since no contraband ever came to be recovered from the conscious possession of the bail petitioner, no case, much less a case under Ss. 20 and 29 of the Act ibid is made out against his client and as such, he deserves to be enlarged on bail. Mr. Chauhan, learned Senior Advocate further contends that a commercial quantity of contraband admittedly came to be recovered from the bag being carried by the co-accused, Lachhman, as such, mere presence of the bail petitioner alongwith said person is not a sufficient ground to conclude his guilt, if any, punishable under S.29 of the Act ibid. He further submits that the present bail petitioner though hails from Nepal, but since his childhood, bail petitioner is residing in the State of Himachal Pradesh and this Court, while enlarging him on bail, may impose any restrictions upon the bail petitioner, so that his presence is secured during trial.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that on 14.11.2019, two persons, hailing from Nepal were found sitting near link road, Village Nando, by the police but since persons referred to above got perplexed and made an attempt to run away from the spot, Police, after apprehending them, conducted their personal search and also searched the bag being carried by Lachhman, in the presence of independent witnesses. Police allegedly recovered 1.654 kg of Charas from the backpack/rucksack being carried by the co-accused Lachhman but since no plausible explanation ever came to be rendered on record by both the persons with regard to possession of commercial quantity of the contraband, Police, after completion of necessary codal formalities, lodged FIR as detailed herein above, under Ss. 20 and 29 of the Act ibid against both the persons and since then they are both behind the bars. It is an admitted case of the investigating agency that 1.654 kg of Charas was recovered from the rucksack/backpack being carried by the co-accused Lachhman. Precisely the case of the Police against the bail petitioner is that since at the time of alleged recovery, bail petitioner, who was accompanying main accused, Lachhman, tried to run away after having seen the Police, as such, he is also liable to tried for the commission of offence punishable under S.29 of the Act.

At this stage, this Court is unable to lay its hand to material, if any, adduced on record, suggestive of the fact that the bail petitioner, who admittedly at the time of alleged recovery was in the company of the main accused, either connived or helped the main accused to procure aforesaid commercial quantity of contraband. Merely attempt, if any, made by bail petitioner to run away from the spot of incident, cannot be a ground to conclude complicity, if any, of the bail petitioner as far as commission of offence, if any, under S.29 of the Act ibid is concerned. There is no material available, if any, that in the past bail petitioner had been indulging in such activities and there is any case registered against the bail petitioner under Narcotic Drugs & Psychotropic Substances Act. Factum, with regard to complicity, if any, of the bail petitioner in the case at hand is yet to be established on record by the investigating agency, by leading cogent and convincing evidence on record, 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. Main accused, from whose conscious possession commercial quantity of Charas came to be recovered, is behind the bars. Hon'ble Apex Court, in a catena of cases has repeatedly held that till the time guilt of a person is proved, he/she is deemed to be innocent. No doubt, in the case at hand, bail petitioner has allegedly indulged in a heinous offence, but, as has been noted herein above, his complicity, if any, in the commission of offence punishable under Ss. 20 and 29 of the Act ibid is yet to be established. 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, as has been fairly admitted by learned Senior Advocate appearing for the bail petitioner.

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."

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."

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 40, 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."

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.2,00,000/- with one local surety in the like amount, to the satisfaction of learned trial Court or any other Magistrate available at Solan, 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.

Authenticated copy.