Giridhar vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present petition filed under Section 439 of Cr.PC, prayer has been made on behalf of the bail petitioner namely Giridhar, who is behind

bars since 21.12.2019, for grant of regular bail in connection with FIR No. 239/19, dated 26.10.2019 under Sections 20 and 29 of ND&PS Act (in

short “the Actâ€​) registered at P.S. Bhuntar, District Kullu, H.P.

Perusal of status report having been filed by the respondent-State reveals that on 25.10.2019, police party present at TCP Bajora, stopped a

VOLVO bus for checking. Since occupant of seat No. 18 namely Tahal Singh got perplexed after having seen the police, police conducted his search

in the presence of independent witnesses and allegedly, recovered 1.2 Kg of Charas. Since no plausible explanation came to be rendered on record by

the above named occupant, police after completion of necessary codal formalities, lodged aforesaid FIR against the bail petitioner on 26.10.2019.

During investigation, above named person Tahal Singh informed the police that he purchased the contraband in question from person namely Ramesh

Chand for a total consideration of Rs. 80,000/-. Above named person also disclosed to the police that contraband allegedly recovered from him was to

be sold to one Gary Bhai alias Ghardeep Singh Dutta, R/o Ropar, Punjab. During investigation, Tahal Singh disclosed to the police that Gary Bhai alias

Ghardeep Singh transferred money in the account of the present bail petitioner. On the basis of aforesaid information shared by the Tahal Singh police

carried out further investigation and found that some money was transferred in the bank account of the present bail petitioner by Gary Bhai alias

Ghardeep Singh. In the aforesaid background, police called upon the present bail petitioner to join the investigation. On 19.12.2019, police arrested the

bail petitioner and since then, he is behind the bars.

Precisely, case of the Investigating Agency against the present petitioner is that contraband allegedly recovered from the conscious possession of

Tahal Singh was to be sold to Gary Bhai alias Ghardeep Singh , who in turn had deposited some amount in the bank account of the present bail

petitioner. During investigation, police found that sum of Rs. 24,450/- was sent by Gary Bhai alias Ghardeep Singh to the bank account of the present

bail petitioner on various dates. Though present bail petitioner claimed before the Investigating Agency that since he runs the business of tour and

travels, Gary Bhai alias Ghardeep Singh transferred some amount for the purpose of booking of hotel etc., but such plea of him was not accepted by

the police because petitioner failed to place on record any documentary evidence suggestive of the fact that he has business of tour and travels.

Mr. Sanjeev Sood, learned Additional 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 keeping in view the gravity of offence alleged to have been committed by him,

he does not deserve any leniency and as such, his prayer for grant for bail deserves to be rejected. Mr. Sood, while making this court to peruse status

report contends that it stands duly established on record that bail petitioner was fully involved in the sale and purchase of Narcotics and as such, it

cannot be said that he has been falsely implicated. While referring to the bank transactions, Mr. Sood contends that no plausible explanation ever

came to be rendered on record by the bail petitioner qua the amount allegedly received by him from Gary Bhai, to whom, huge quantity of contraband

was to be delivered by the present bail petitioner. Lastly, Mr. Sood contends that since bail petitioner has indulged in serious crime having adverse

impact on the society, it would not be in the interest of justice to enlarge the bail petitioner on bail at this stage.

Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of the alleged incident, 1.2

Kg of Charas came to be recovered from the conscious possession of the co-accused namely Tahal Singh. No doubt, investigation conducted by the

Investigating Agency reveals that above named Tahal Singh disclosed to the police that Charas allegedly recovered from his possession was to be

delivered to Gary Bhai, but definitely, there is no direct allegation, if any, of sale and purchase of alleged contraband against the present bail petitioner.

Above named Tahal Singh has stated to the police that Gary Bhai transferred some amount in the bank account of present bail petitioner, but if the

statement given by Gary Bhai to the police is perused, he has nowhere stated that amount allegedly transferred by him in the bank account of the

present bail petitioner was in lieu of the contraband agreed to be sold to him by Tahal Singh. Gary Bhai while denying allegation of Tahal Singh

specifically disclosed to the police that sum of Rs. 25,450/- deposited by him in the bank account of the petitioner was on account of advance hotel

bookings since he is in the business of tour and travels. Details of transaction as mentioned in the status report reveals that total sum of Rs. 25,450/-

came to be deposited in the bank account of the bail petitioner two months prior to the alleged date of incident. Otherwise also, aforesaid sum was not

deposited in one day, rather same was deposited in small installments within a span of two months and as such, there appears to be some truth in the

statement given by the present bail petitioner and co-accused Gary Bhai that amount allegedly transferred in the bank account of the bail petitioner

was on account of hotel bookings. Leaving everything aside, Gary Bhai to whom, allegedly entire quantity of contraband was to be delivered by the

main accused, Tahal Singh stands enlarged on interim bail vide order dated 30.12.2019, passed by co-ordinate Bench of this Court in Cr.MP(M) No.

2356 of 2019.

In the case at hand, contraband never came to be recovered from the conscious possession of the bail petitioner, rather he has been roped in the

case merely on account of some money transaction. If at all it is presumed that sum allegedly transferred in bank account of the bail petitioner by

Gary Bhai was for the purpose of purchase of Charas, story of prosecution cannot be believed because cost of 1.2 Kgs of Charas would not amount

to Rs. 25450/- only, rather it would fetch the amount in lacs. Other than, few whatsapp messages and the statement of main accused, there is nothing

on record to suggest that present bail petitioner played an active role in transport of huge quantity of contraband, allegedly recovered from the

conscious possession of the co-accused Tahal Singh. Mere Whatsapp message/screen shot suggestive of money transaction, if any, inter-se bail

petitioner and Gary Bhai is not sufficient to conclude complicity, if any, of the bail petitioner as far as commission of offence at this stage is concerned,

rather same needs to be proved in accordance with law. No doubt, provisions of Section 37 are attracted in the present case, because of commercial

quantity, but as has been noticed herein above, contraband never came to be recovered from the exclusive and conscious possession of the present

bail petitioner and as such, prayer having been made on his behalf for grant of bail cannot be rejected on this ground.

Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record

by the Investigating Agency, but having noticed aforesaid glaring aspects of the matter, there appears to be no justification to let the bail petitioner

incarcerate in jail for an indefinite period, especially when Gary Bhai, to whom allegedly entire quantity of contraband was to be supplied stands

already enlarged on bail. 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. Moreover, trial of the accused is likely to be further delayed on account of

COVID- 19 and as such, this Court cannot let the bail petitioner incarcerate in jail for an indefinite period during trial.

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.â€​

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.â€​

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. 5,00,000/- each 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.