Chhabile Ram vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, namely Chhabile Ram, who is behind the bars since 9.7.2020, has approached this Court in the instant proceedings filed under S.439

CrPC, for grant of regular bail in FIR No. 105, dated 25.6.2020 under Ss. 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act registered

at Police Station Patlikuhal, District Kullu, Himachal Pradesh.

Respondent-State, besides filing status report, has also produced complete record, perusal whereof reveals that on 25.6.2020, at 6.30 am, patrolling

party present at Dobhi Fojal saw person namely Diwan Chand coming from Village Bihal. Since above named person having seen the police got

perplexed and made an attempt to flee from the spot after throwing carry bag in the nearby grass, police stopped him for interrogation. Since conduct

of the above named person was suspicious and he was unable to answer the queries of the Police, Police deemed it necessary to conduct his search.

Though, at the first instance, police made an attempt to associate independent witnesses, but since none was available, police officials conducted

search of carry bag allegedly thrown by the accused Diwan Chand in nearby grass and allegedly recovered 1.484 kg charas. After completion of

necessary codal formalities, police registered a case under S.20 of the Act ibid against aforesaid accused, Diwan Chand, who, during investigation

revealed to the police that he purchased aforesaid commercial quantity of contraband from the person namely Chuni Lal for a total consideration of

Rs.1,85,000/-. On the basis of aforesaid revelation made by Diwan Chand, Police apprehended accused Chuni Lal, who further disclosed to the Police

that on the askance of Diwan Chand, he had arranged the aforesaid contraband from present bail petitioner, Chhabile Ram. Chuni Lal in his statement

given to the Police disclosed that on 24.6.2020, accused Diwan Chand had approached him with the request to arrange for charas. Chuni Lal disclosed

to the police that since he knew Chhabile Ram for the last two years, he assured Diwan Chand that within a day or two, he will arrange charas for

him. Chuni Lal disclosed to the Police that Diwan Chand gave Rs.1,85,000/-for purchase of charas. As per disclosure made by Chuni Lal to the

Police, in the evening of 24.6.2020, bail Diwan Chand had delivered 1.484 kg charas near the house of Chuni Lal for a sum of Rs.1,75,000/-, whereas,

he gave Rs.5,000/-as commission to Chuni Lal. As per compliance report filed in the case at hand, Chuni Lal, after having received charas from

Chhabile Ram, hid the same near his house and thereafter gave it to Diwan Chad. In the aforesaid background, case under S. 29 of the Act came to

be registered against the bail petitioner and since 9.7.2020, he is behind the bars. Challan stands filed in the competent Court of law but still the

charges have not been framed.

Prior to filing the present petition, bail petitioner had approached this Court by way of CrMP(M) No. 1029 of 2020, for grant of anticipatory bail,

which was dismissed as withdrawn. Now, since Challan stands filed in the competent Court of law and investigation is complete, present petition has

been filed under the changed circumstances, praying therein for grant of regular bail.

Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting the factum with regard to filing of the Challan in the competent Court

of law, contends that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of the offence alleged to have

been committed by him, prayer made on his behalf for grant of bail deserves outright rejection. While making this court peruse the status report as

well as evidence collected on record by the investigating agency, Mr. Thakur vehemently argued that there is overwhelming evidence available on

record suggestive of the fact that present petitioner was the main supplier and for a sum of Rs.1,80,000/- sold commercial quantity of charas to the

person namely Chuni Lal, who further sold the same to Diwan Chand, from whose conscious possession, commercial quantity of contraband came to

be recovered on the date of alleged incident. Mr. Thakur contends that on account of overwhelming evidence available on record suggestive of the

involvement of the bail petitioner, bail petition having been filed by him deserves outright rejection.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that commercial quantity of contraband

was recovered from the carry bag allegedly thrown by accused Diwan Chad and not from the conscious possession of the bail petitioner. As per own

story of the prosecution, Diwan Chand, after having seen the police threw carry bag containing commercial quantity of contraband in the nearby grass,

but at this juncture, this Court cannot lose site of the fact that recovery of aforesaid commercial quantity of contraband from carry bag allegedly

thrown by Diwan Chand, was not effected in the presence of any independent witness. The main accused, Diwan Chand, who allegedly threw carry

bag in the nearby grass, has nowhere stated that the bail petitioner Chhabile Ram sold him the commercial quantity of charas, rather, he disclosed to

the police that he approached Chuni Lal for purchase of charas and gave him Rs.1,80,000/-. Chuni Lal though in his statement given to the police

admitted that he received Rs.1,80,000/- from Diwan Chand, but, at the first instance, he never told Diwan Chand that he would purchase charas from

present bail petitioner, Chhabile Ram. Chuni Lal in his initial statement given to the Police reveals that he knew present bail petitioner for two years

and he approached him for the purchase of charas. As per initial statement of Chuni Lal, present bail petitioner gave Rs.5,000/- to Chuni Lal, as

commission and subsequently delivered around 1.5 kg charas at Dobhi to Chuni Lal, however, in the subsequent statement given to the police, Chuni

Lal, claimed that he after having received charas from the present bail petitioner, hid the same in bushes near his house, but there is nothing in his

statement that at what time, he received contraband from bail petitioner and delivered the same to Diwan Chand. As per Chuni Lal, 1.5 kg charas was

received by him in the evening of 24. 6.2020 and thereafter, he hid the same in bushes near his house but, as per prosecution story, Diwan Chand

came to be apprehended with commercial quantity of charas at 6.30 am on 25.6.2020. There is nothing on record to show that Chuni Lal, after having

received charas from bail petitioner, delivered the same to Diwan Chand in the intervening night of 24/25.6.2020, as such, it is difficult to conclude at

this stage that charas allegedly recovered from carry bag allegedly thrown by Diwan Chand, was the charas given to him by Chuni Lal, which he had

purchased from bail petitioner, Chhabile Ram. There is nothing in the statement of Chuni Lal, that on 24.6.2020, or in the intervening night of

24/25.6.2020, Diwan Chand came to his house to collect charas purchased by him from present bail petitioner, Chhabile Ram. As per prosecution

story, sum of Rs.1,75,000/-was retained by Chhabile Ram, which he had spent in repaying loan allegedly taken by him from his near and dear ones but

the Bank statement adduced on record reveals that on 25.6.2020, Chhabile Ram had only deposited Rs. 10,000/-in his bank account and at the same

time no effort, if any, has been made by investigating agency to ascertain the names of the persons to whom Chhabile Ram allegedly repaid the loan.

Leaving everything aside, this Court finds from the record that commercial quantity of charas never came to be recovered from the conscious

possession of the present bail petitioner, rather same was recovered from co-accused Diwan Chand, who otherwise at no point of time named present

bail petitioner rather, alleged that person namely Chuni Lal had arranged charas for him. Though, investigating agency by setting up a case that Chuni

Lal had purchased charas from bail petitioner, has made an attempt to connect the present bail petitioner with the alleged offence but, for the reasons

discussed herein above, this Court, at this juncture finds no concrete evidence to conclude complicity of the present bail petitioner in the case at hand.

Though, Mr. Kunal Thakur, Learned Deputy Advocate General vehemently argued that there is complete bar under S.37 of the Act to grant bail in

cases, where commercial quantity of contraband is involved but, bare perusal of provisions of S.37 of the Act nowhere suggests that there is complete

bar to grant bail in cases, where commercial quantity is involved, rather, in such like cases, court after having afforded opportunity to the Public

Prosecutor can grant bail in cases involving commercial quantity of contraband, if it has reasons to believe that the person seeking bail is not guilty of

such offence and is not likely to commit offence while on bail.

In the case at hand, since bail petitioner has been implicated in the case on the basis of statement of co-accused, that too without there being any

concrete evidence, this Court finds sufficient reasons to consider prayer for grant of bail.

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 let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be

recovered from him. Apprehension expressed by learned Deputy 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 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. Consequently, present petition is allowed. Petitioner is ordered to be enlarged

on bail, subject to furnishing fresh bail bonds in the sum of Rs.5,00,000/- with one local surety 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.

(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.

Copy dasti.