Ghardeep Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of instant petition filed under S.438 CrPC, prayer has been made on behalf of the petitioner, for grant of anticipatory bail in FIR No. 239, dated 26.10.219, under Ss. 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act and S.201 IPC registered at Police Station Bhuntar, District Kullu, Himachal Pradesh. Status report stands filed, which reveals that on 25.10.2019, police party comprising of TCP Bajora conducted search of passengers traveling in a Volvo bus bearing registration No. HP-66A-2204 enroute Manali to Chandigarh. Occupant of seat No. 18, namely Tahal Singh, after seeing the police got perplexed and as such, police conducted his search in the presence of independent witnesses leading to alleged recovery of 1.2 kg of Charas. After completion of investigation, Police lodged FIR detailed herein above against the accused Tahal Singh, who during investigation revealed that he purchased contraband in question from a person namely Ramesh Chand, for a total consideration of Rs.80,000/-. Tahal Singh also disclosed to the Police that the contraband allegedly recovered was to be sold to one Ghardeep Singh i.e. bail petitioner, who is resident of Ropar, Punjab. Allegedly, above named Tahal Singh disclosed to the police that the bail petitioner transferred money amounting to Rs.25,450/- into account of another person namely Giridhar. On the basis of information revealed by Tahal Singh, police carried out further investigation and found that some money was transferred in the bank account of Giridhar by the bail petitioner. In the aforesaid background, police called upon Giridhar as well as bail petitioner to join investigation and on 19.12..2019, arrested co-accused Giridhar whereas, bail petitioner approached this Court and this Court vide order dated 30.12.2019, enlarged him on interim bail, subject to his joining investigation. Above named co-accused Giridhar stands enlarged on bail vide order dated 5.8.2020 passed by this Court in CrMP(M) No. 251 of 2020.

Mr. Kunal Thakur, learned Deputy Advocate General, while admitting the factum with regard to completion of investigation, contends that though the Challan in the case at hand, stands filed in the competent Court of law, but keeping in view 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. Thakur, while making this Court peruse the status report, contends that there is ample evidence on record suggestive of the fact that bail petitioner was fully involved in sale-purchase of narcotics as such, prayer made on his behalf for bail deserves outright rejection. While referring to aforesaid transaction, Mr. Thakur contends that though present bail petitioner has claimed that the amount was transferred in the bank account of Giridhar in connection with business of some traveling agency but since no evidence came to be led on record in this regard, it can be inferred /presumed that such amount was meant for sale-purchase of narcotics, especially when Tahal Singh, from whose conscious possession commercial quantity of contraband came to be recovered, disclosed that the bail petitioner has transferred some amount in the name of Giridhar, for sale-purchase of Charas. Lastly, Mr. Thakur, contends that since the bail petitioner has indulged in serious crime having an adverse impact on the society, it would not be interest of justice to enlarge him on bail.

Having heard learned counsel for the parties and perused material available on record, this Court finds that the precise case of the investigating agency against the bail petitioner is that the contraband allegedly recovered from conscious possession of Tahal Singh was to be sold to him and as such, he deposited some amount in the bank account of Giridhar, who otherwise stands enlarged on bail. During investigation, Police found that an amount of Rs.25,450/- came to be transferred by bail petitioner in the account of Giridhar on 28.6.2019, 12.7.2019 and 13.7.2019. Though the investigation reveals that the bail petitioner, in order to prove his innocence, claimed before impugned award that the sum allegedly transferred by him in the account of Giridhar, was in connection with business of some travel agency but such plea of bail petitioner was not accepted by the police.

In the case at hand, commercial quantity of contraband came to be recovered from the conscious possession of Tahal Singh, who during investigation revealed that contraband allegedly recovered from his possession was to be delivered to the bail petitioner. In this regard, bail petitioner allegedly had transferred some amount in the bank account of co-accused Giridhar. Aforesaid disclosure/revelation, if any, made by Tahal Singh though is yet to be proved in the totality of evidence collected on record by investigating agency, but even if it is presumed that the Charas allegedly recovered from Tahal Singh was to be delivered to the bail petitioner, it is not understood that why he transferred amount in the account of co-accused Giridhar and not in the account of Tahal Singh. Tahal Singh disclosed to the police that the bail petitioner transferred some amount in the account of Giridhar, but he nowhere stated that the amount allegedly transferred by bail petitioner in the account of Giridhar was in lieu of contraband agreed to be sold by him to bail petitioner. Bail petitioner, while denying allegation of Tahal Singh, specifically claimed that sum of Rs.25,450/- was deposited by him in the bank account of Giridhar in connection with business of hotel booking. Otherwise also, detail of transaction as mentioned in the status report reveals that total sum of Rs.25,450/- was deposited in the bank account of co-accused Giridhar two months prior to alleged incident, that too in small installments, as such, it would be too premature to conclude the complicity of the bail petitioner in the commission of alleged crime at this stage, that too on the basis of transaction if any, inter se bail petitioner and co-accused Giridhar.

This Court also cannot lose sight of the fact that the contraband never came to be recovered from the conscious possession of bail petitioner, rather the same was recovered from Tahal Singh and name of bail petitioner was implicated on the basis of disclosure made by Tahal Singh that contraband was to be delivered to bail petitioner. Even if, version of Tahal Singh is presumed to be correct, story of prosecution cannot be believed because cost of 1.2 kg of Charas would be in Lakhs of Rupees but as per own case of the investigating agency only Rs.25,450/-was deposited in the account of Giridhar. Save and except the alleged disclosure made by Tahal Singh with regard to involvement of bail petitioner and a few Whatsapp messages inter se co-accused Giridhar and Tahal Singh, there is no material worth credence available on record suggestive of the fact that bail petitioner played an active role in the transportation of commercial quantity of Charas, which undisputedly came to be recovered from conscious possession of Tahal Singh.

At this stage, learned Deputy Advocate General, contends that the screenshots of Whatsapp messages placed on record by investigating agency clearly indicate towards the active role played by bail petitioner in the commission of alleged offence, however, this Court is of the view that mere Whatsapp messages/screen shots if any, inter se co-accused Giridhar and Tahal Singh, are not sufficient to conclude complicity, if any, of bail petitioner at this stage, rather, same is required to be proved in accordance with by leading cogent and convincing evidence.

True it is that having taken note of the commercial quantity involved in the case, provisions of S.37 of the Act are attracted in the present case, but since the contraband never came to be recovered from the conscious possession of the bail petitioner coupled with the fact that there is no direct evidence suggestive of his complicity in the alleged offence, bar if any, of S. 37 of the Act, cannot be a ground for this court to refuse bail to bail petitioner. Otherwise also, provisions of S.37 of the Act nowhere completely debar a court from granting bail in commercial quantity of the contraband, rather, after affording due opportunity to the Public Prosecutor to oppose the prayer made for bail, Court can proceed to enlarge an accused on bail, if the person seeking bail appears to be not guilty.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having taken note of aforesaid aspect of the matter, there appears to be no justification to send the bail petitioner behind the bars, especially when Challan stands filed and nothing remains to be recovered form the bail petitioner. Otherwise also, co-accused in whose account money was allegedly transferred by bail petitioner stands enlarged on bail. At this stage, learned Counsel appearing for the petitioner informs this Court that co-accused Ramesh Chand, from whom Tahal Singh had allegedly purchased contraband already, stands enlarged on bail by this Court in CrMP(M) No. 1263 of 2020.

Hon'ble Apex Court and this Court have held in a catena of judgments that a person is deemed to innocent till the time, his/her guilt is prove in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution, as such, there appears to be no justification to keep the petitioner behind bars for an indefinite period during trial. Apprehension expressed by learned Deputy 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.

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. Order dated 30.12.2019 is made absolute, subject to petitioner 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 Investigating Officer/learned 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. Copy Dasti.