Irfan Khan vs State Of Himachal Pradesh

Sandeep Sharma, J

Sequel to order dated 22.5.2020, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest in case FIR No. 37/2020, dated 30.3.2020, under Section 29 of the Narcotic Drugs & Psychotropic Substances Act,1985 ( For short ' Act'), registered with police Station, Majra, District Sirmour, H.P., respondent­State has filed status report prepared on the basis of the investigation carried out by the Investigating Agency, perusal whereof reveals that on 29.3.2020 police apprehended one motorcycle bearing registration No. HR­ 71­E­8893 and allegedly recovered 9.192 Kg of poppy husk. As per Investigating Agency driver of the aforesaid motorcycle i.e. present bail petitioner as well as pillion rider fled away from the spot leaving behind motorcycle, carton boxes containing 9.192 Kg of Poppy husk as well as other grocery items. However, while fleeing from the spot one of the co­accused dropped his mobile phone and the same was picked up by a Forest Guard namely, Ram Singh. On the basis of the call details of the mobile phone allegedly dropped by co­accused, police started investigation and found that the motorcycle bearing registration No. HR­71­E­8893 was in the name of Aliyas Ahmad son of Abbal Hassan, who during investigation disclosed that he has already sold the aforesaid motorcycle by way of an affidavit to the bail petitioner. On the basis of aforesaid information police registered the case against the bail petitioner. However, this Court having carefully perused the record/ status report made available by the Investigating Agency pursuant to order dated 20.5.2020, enlarged the present bail petitioner on interim bail with the direction to join investigation.

Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to joining of the investigation by the bail petitioner, contends that since co­ accused Sahab Deen has not been arrested till date, it may not be in the interest of justice to release the present bail petitioner on bail at this stage. Learned Additional Advocate General further contends that there is ample evidence available on record suggestive of the fact that on the date of alleged incident intermediate quantity of poppy husk was being smuggled by the bail petitioner and as such, he does not deserves any leniency. Learned Additional Advocate General further contends that present bail petitioner with a view to prove his innocence also produced fake documents and as such, his application may be rejected.

Having heard learned counsel representing the parties and perused the material available on record this Court finds that on the date of alleged incident police apprehended one motorcycle bearing registration No. HR­71­E­8893 allegedly being driven by the present bail petitioner, but there is nothing on the record suggestive of the fact that at the time of alleged incident persons present on the spot had recognized the present bail petitioner because as per own case of the Investigating Agency, case against the present bail petitioner came to be lodged on the basis of the call details of the phone allegedly dropped on the spot by one of the co­accused while fleeing away from the spot. Record reveals that the bail petitioner with a view to prove his innocence has placed on record one affidavit suggestive of the fact that the motorcycle involved in the alleged incident was actually sold to him after one month of the alleged incident.

Leaving everything aside, this Court finds that on the date of alleged incident intermediate quantity of contraband band i.e.9.192 Kg of poppy husk came to be recovered from the carton boxes being carried by the bail petitioner on the motorcycle bearing registration No. HR­71­E­8893 and as such, rigours of Section 37 are not attracted in the present case.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the investigating agency, but having noticed aforesaid aspect of the matter, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during trial, especially when guilt, if any, of the bail petitioner is yet to be proved in accordance with law.

It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.

Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting 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 categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon'ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the judgment are reproduced as under:­

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 first­time 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 Re­Inhuman 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."

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.

Consequently, in view of the above, order dated 22. 5.2020, passed by this Court, is made absolute subject to his furnishing personal bond in the sum of Rs. two lac with two local sureties in the like amount each to the satisfaction of the Investigating Officer, 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 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 his 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 bail petition stands disposed of accordingly.