Davinder Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, namely Davinder Kumar, who is behind the bars since 19.9.2020, has approached this Court in the instant proceedings filed under

Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.145 of 2020, dated 18.9.2020, registered at

police Station, Paonta Sahib, District Sirmaur, H.P. under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short

‘Act’).

Status report filed/prepared by the respondent-

State on the basis of the investigation carried out by the Investigating agency, reveals that on 18.9.2020, police after having received secret

information that a person namely, Ashok Kumar has gone to Haryana for consignment of drugs, laid Naka at Police check post Behral. At 6.05 pm,

motorcycle bearing No. HP 17-A-8677 TVS being driven by Ashok Kumar was stopped for checking. Since, aforesaid person got perplexed after

having seen the police, police carried out his personal search as well as of the motorcycle in the presence of independent witnesses and allegedly

recovered 1800 capsules of PYN SPAS PLUS. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the person

namely Ashok Kumar. During the investigation, above named Ashok Kumar disclosed to the police that though, he is a tailor by profession but since

now a days, there is no work on account of lockdown, he on the askance of the person namely, Karamjeet had gone to Haryana from Paonta Sahib

for bringing the consignment of drugs. He revealed to the police that accused Karamjeet had given him his motor cycle to enable him to go

Hathinikund to meet a person namely Davinder Singh i.e. present bail petitioner. He also disclosed to the police that accused Karamjeet had hired him

for Rs. 250/- on daily wages. He disclosed to the police that when he reached Hathinikund, present bail petitioner Davinder Singh gave him telephonic

call and handed over the consignment of drugs. In the aforesaid background, present bail petitioner came to be named in the FIR. On the basis of

aforesaid information shared by accused Ashok Kumar, police besides investigating the accused Karamjeet also investigated another accused namely,

Tinku Kumar, who in their investigation allegedly admitted the factum with regard to delivery of consignment of drugs by present bail petitioner to

accused Ashok Kumar. Police during investigation found that person namely Karamjeet and Tinku Kumar had been talking to accused Ashok Kumar

frequently while he was going to Hathinikund for taking consignment of drugs. As per investigation, accused Karamjeet gave Rs.12,800 to accused

Tinku Kumar for transferring the same into the bank account of present bail petitioner. As per status report, sum of Rs. 3, 65,000/- in total came to be

transferred in the bank account of wife of present bail petitioner from the bank account of accused Tinku Kumar. In the aforesaid background,

present bail petitioner came to be arrested on 19.9.2021 and since then he is behind the bars. Co-accused Karamjeet and Tinku Kumar already stand

enlarged on bail vide judgments dated 27.4.2021 and 17.12.2020 passed by this Court in Cr.MP(M) No. 528 of 2021 and Cr.MP(M) No.2084 of 2020.

Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner coupled with the fact that other

co-accused Karamjeet and Tinku Kumar already stand enlarged on bail, petitioner has approached this Court in the instant proceedings under the

changed circumstances.

Mr. Sudhir Bhatnagar, learned Additional 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 bail petitioner, but keeping in view the gravity of offence alleged to have been

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

Bhatnagar submits that there is overwhelming evidence adduced on record by the Investigating Agency suggestive of the fact that present bail

petitioner in connivance with other co- accused Karamjeet and Tinku Kumar delivered the consignment of prohibited drugs to other co-accused Ashok

Kumar and as such, it cannot be said that present bail petitioner has been falsely implicated. While referring to record, learned Additional Advocate

General contends that present bail petitioner on the date of alleged incident was not only in the constant touch of accused Ashok Kumar, but he

himself delivered the consignment of drugs to Ashok Kumar and as such, does not deserve any leniency. Lastly, Mr. Bhatnagar, learned Additional

Advocate General submits that sum of Rs.3, 65,000/- came to be transferred in the bank account of Smt. Gurvinder Kaur wife of the present bail

petitioner and as such, it stands duly established on record that present bail petitioner had been indulging in the illegal trade of narcotics and as such, it

would not be in the interest of justice to enlarge him on bail at this stage.

Having heard learned counsel for the parties and perused material available on record this court finds that present bail petitioner came to be named

in the FIR on the basis of financial transactions allegedly took place interse wife of the present bail petitioner and co-accused Tinku Kumar. 1800

capsules of prohibited drug were not recovered from conscious possession of present bail petitioner, rather same were recovered from accused,

Ashok Kumar, who subsequently during the investigation disclosed to the police that he had gone to Haryana for fetching consignment of prohibited

drugs at the askance of accused Karamjeet. Though, prosecution with a view to connect present bail petitioner with the alleged crime has made an

attempt to carve out a case that a sum of Rs.3, 65,000/- in total was deposited in bank account of Smt. Gurvinder Kaur wife of the present bail

petitioner by accused Tinku Kumar, but interestingly in the case at hand Smt. Gurvinder Kaur wife of present bail petitioner has been not arrayed as

an accused. As per status report aforesaid sum of Rs. 3, 65, 000/- was not deposited on the date of alleged commission of offence, rather amount

came to be deposited in the account of Smt. Gurvinder Kaur i.e. wife of present bail petitioner within a span of six months prior to the date of alleged

incident.

Challan filed by the Investigating Agency, if read in its entirety clearly, reveals that present bail petitioner is close relative of co-accused Karamjeet,

at whose askance accused Tinku Kumar allegedly transferred sum of Rs. 3,65,000/- in the account of Smt. Gurvinder Kaur wife of present bail

petitioner. Allegedly accused Tinku Kumar disclosed to the police that accused Karamjeet and he after having collected money, deposited the same in

the bank account of wife of the present bail petitioner, but neither she has been arrayed as an accused nor evidence, if any, has been collected on

record suggestive of the fact that account of Smt. Gurvinder Kaur was being handled/operated by present bail petitioner Davinder Singh.

Leaving everything aside, this Court finds from the status report/record that entire case of the prosecution is that accused Ashok Kumar went to

fetch the consignment of drugs from the present bail petitioner at the askance of accused Karamjeet, who allegedly asked co-accused Tinku Kumar to

deposit the amount in the account of present bail petitioner. But as has been taken note hereinabove, there is no material available on record

suggestive of the fact that accused Tinku Kumar deposited any amount in the bank account of present bail petitioner, rather amount, if any, came to

be deposited in the bank account of Smt. Gurvinder Kaur, who has been otherwise not named in the FIR. Moreover, money exchanged interse wife of

present bail petitioner and accused Tinku Kumar was not deposited in close proximity with the date of alleged offence, rather such amount came to be

deposited within a span of six month that too in small installments. Since, there is nothing to suggest that financial transactions took place interse

present bail petitioner and accused Tinku Kumar, there appears to be no justification at this stage to conclude the complicity, if any, of present bail

petitioner in the alleged commission of offence.

Though, the contraband allegedly recovered from the possession of Ashok Kumar is of commercial quantity and as such, rigors of S.37 of the Act

are attracted but since commercial quantity of contraband came to be recovered from the conscious possession of co-accused Ashok Kumar coupled

with the fact that there is no direct evidence to connect bail petitioner with alleged commission of offence, prayer for grant of bail having been made

by the present bail petitioner cannot be denied on the ground of bar, if any, provided under Section 37 of the Act. Careful perusal of Section 37 of the

Act, clearly suggests that there is no complete bar/prohibition to grant bail to the accused having found in possession of commercial quantity of

contraband, rather court after having afforded due opportunity of being heard to the public prosecutor can proceed to grant bail even in the cases of

commercial quantity, if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the act and

secondly that he is not likely to commit any offence while on bail. Mere telephonic conversation, if any, interse present bail petitioner and co-accused

Ashok Kumar is not sufficient to prove complicity, if any, of bail petitioner at this stage, rather such fact, if any, is required to be proved in accordance

with law by leading cogent and convincing evidence by the prosecution. Since co-accused namely Karamjeet and Tinku Kumar already stand enlarged

on bail, there appears to be no justification to keep the present bail petitioner behind bars for an indefinitely period during trial, especially when he has

already suffered for more than six months.

Hon'ble Apex Court as well as this Court have held in a catena of judgments that a person is deemed to be innocent, till the time his/her guilt is

proved in accordance with law, as such, there is no justification to let bail petitioner incarcerate in jail for an indefinite period during trial. Besides this,

there is every likelihood of the trial being delayed on account of situations prevailing in the wake of Covid-19 pandemic and as such, this Court sees no

reason to let the bail petitioner incarcerate in jail for an indefinite period during trial. 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 the bail petitioner to stringent conditions.

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.â€​

In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court 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.

Needless to say, 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 the various principles to be

kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood

of repeating of the offence by accused etc.

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.3,00,000/- with one local surety in the like amount, to the satisfaction of the

Magistrate available at the station, 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.