Jatinder Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely, Jatinder Kumar, who is behind the bars since 28.10.2019, 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.192/2019, dated 28.10.2019, under Sections

21 61Â85 of the Narcotic Drugs & Psychotropic Substances Act,1985 ( For short ‘Act’), registered at police Station, Indora, District Kangra,

Himachal Pradesh.

Sequel to order dated 23.7.2020, respondentÂState has filed the status report prepared on the basis of the investigation carried out by the

Investigating Agency, perusal whereof reveals that on 28.10.2019, police party present at traffic Nakka near Paniyala pool, stopped motorcycle

bearing registration No. PBÂ06HÂ5216 Apache, but since driver as well as pillion rider of the motorcycle made an attempt to run away from the

spot, police became suspicious and accordingly search of the motorcycle in question as well as person of bail petitioner and other coÂaccused in the

presence of independent witnesses was conducted. Police recovered 6.96 grams heroin from the dickey/ tool box of the motorcycle in question..

Since, no plausible explanation came to be rendered on record on behalf of the driver as well as pillion rider of the motorcycle for possessing the

aforesaid contraband, FIR in question came to be registered against the bail petitioner and co-accused and since then bail petitioner is behind the bars,

whereas coÂ​accused (pillion rider) stands enlarged on bail.

Mr. Sanjeev Sood, 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 the bail petitioner, but keeping in view the gravity of the offence alleged to have

been committed by him, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail may be rejected

outrightly. Learned Additional Advocate General further contends that it stands duly established on record that bail petitioner had been indulging in

such activities in past also and as such, it would not be in the interest of justice to enlarge him on bail because in the event of is being enlarged on bail,

there is every likelihood of him indulging in same crime again.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that 6.96 grams of heroin came

to be recovered from the motorcycle owned by Hav Dalwinder Singh R/0 village Bhatoya, Post office Tara Garh, District Gurdaspur. Though,

aforesaid quantity of contraband came to be recovered in the presence of the independent witnesses, but it is not in dispute that the contraband never

came to be recovered from the exclusive and conscious possession of the present bail petitioner , rather it was recovered from the dickey/ tool box of

the motorcycle in question, which is owned by Hav Dalwinder Singh, as has been taken note hereinabove. No doubt, offence alleged to have been

committed by the bail petitioner is serious in nature and has an adverse impact on the society, but this Court cannot lose sight of the fact that guilt, if

any, of the bail petitioner is yet to be proved in accordance with law, as such this Court sees no justification to keep the present bail petitioner behind

the bars for an indefinite period during the trial, especially when coÂaccused already stands enlarged on bail. It is yet to be proved on record that

contraband allegedly recovered from the tool box/dickey of the motorcycle in question actually belonged to bail petitioner or the pillion rider. There is

no material available on record that complaint, if any, ever came to be received by the police form the owner of the motorcycle in question that on the

date of alleged incident motorcycle in question was misused or taken away by bail petitioner without the consent of the original owner.

Leaving everything aside, heroin allegedly recovered from the dickey/tool box of the motorcycle is of intermediate quantity and as such, rigours of

section 37 are not attracted in the present case.

Though, in the status report, it has been mentioned that one another case has been registered against the bail petitioner under the Act ibid, but since

guilt, if any, of the bail petitioner in that case is yet to be established and as such, mere pendency of that case cannot be a ground for this court to

refuse bail to the bail petitioner, rather perusal of the material made available to this Court reveals that the bail petitioner has become a drug addict and

as such is required to be taken to some rehabilitation centre, so that efforts are made for bringing the bail petitioner to the main stream.

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. Since guilt, if any, of the bail petitioner is yet to be proved, in accordance with law by the prosecution

by leading cogent and convincing evidence, this Court sees no reason to curtail the freedom of the bail petitioner for indefinite period during the trial,

especially when nothing remains to be recovered from him. 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 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 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:

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 firstÂtime 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 ReÂInhuman Conditions in

1382 Prisons.

The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:Â​

“ 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€​

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 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, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal

bonds in the sum of Rs.1.00 lac with one local surety in the like amount each to the satisfaction of the learned trial Court/ Magistrate available at the

station 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 surrender passport, if any, held by him.

It is clarified that if the petitioner misuses the liberty or violate 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.