Joginder Singh vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) by the Police, vide F.I.R. No. 133 of 2023 dated 24.11.2023 registered at Police Station Parwanoo, District Solan, H.P. The petitioner is a mason by profession. He is a chief priest of Devta. Petitoner has enmity with the husband of his niece, who had threatened the petitioner to kill or implicate the petitioner in a false case. Mother of Pritam Singh is a cook at Bhoj Nagar Police Post, District Solan, H.P., who in connivance with the police planted the contraband in the bike of the petitioner. Pritam Singh was even seen near the bike of the petitioner by Rajinder Singh. The petitioner is not a consumer of the drug nor its supplier. The police have completed the investigation and the custody of the petitioner is not required by the Police. The petitioner has two minor children, a wife and an old aged mother, who are dependent upon him. The petitioner will make himself available for trial and will not jump over the bail. He is ready and willing to join the investigation and would abide by all the terms and conditions, which may be imposed by the Court upon him. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

The State has filed a status report asserting that the police party was on patrolling and traffic-checking duty on 24.11.2023, when a motorcycle bearing registrationno. HP-71A-2114 was intercepted by the police. The police searched the motorcycle based on the suspicion in the presence of independent witnesses. 302 grams of Charas was recovered from the motorcycle during the search. The police seized the Charas and arrested the petitioner. The Charas was sent to SFSL Junga, for testing and it was confirmed to be Charas after analysis. The police completed the investigation and prepared the challan. The petitioner can intimidate the witnesses and can abscond in case of release on bail. Hence,it was prayed that the petition be dismissed.

I have heard Dr. Rajesh Kumar Parmar, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State.

Dr. Rajesh Kumar Parmar, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated in the present case. As per the status report the challan has been prepared and presented before the competent Court of law; hence the custody of the petitioner is not required. The petitioner would abide by all the terms and conditions which may be imposed by the Court;therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Jatinder Sharma, learned Additional General submitted that the petitioner was found in possession of 302 grams of Charas. The consumption of narcotics is adversely affecting the younger generation of society and should not be viewed lightly. The petitioner can abscond and intimidate the witnesses in case he is released on bail. Therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions at the bar and have gone through the record carefully.

The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-

The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

A similar view was taken in State of Haryana vs Dharamraj2023 SCC Online 1085, wherein it was observed:

A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(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.’

The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

As per the status report, the petitioner was found in possession of 302 grams of Charas. It is more than a small quantity but less than a commercial quantity; therefore, the rigours of Section 37 of the NDPS Act do not apply to the present case. The police have completed the investigation and filed a challan before the Court. This shows that the police do not require the petitioner for further investigation. The Court is likely to take some time to complete the trial keeping in view the huge pendency of the cases before the Courts below. The petitioner cannot be kept in custody for an indefinite period till the conclusion of the trial.

It was submitted that the petitioner is likely to abscond and influence the witnesses in case he is released on bail. The police have a right to seek the cancellation in case the petitioner violates any of the conditions, however, bail cannot be denied based on the apprehension alone.

The status report does not mention that the petitioner has criminal antecedents. Therefore, the petitioner deserves a chance to reform himself. The continued detention of the petitioner in custody will make the chance of reformation bleak as he will come in contact with the hardened criminals.

13 It has been asserted that the petitioner is a resident of District Sirmour. This was not stated to be incorrect in the status report filed by the State. Therefore, the petitioner has roots in the society and there is no chance of his absconding.

In view of the above, the present petition is allowed. The bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of ₹ 50,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions:

(i) The petitioner will attend the trial on each and every date of hearing and if he is unable to do so, he will seek an exemption from the Court by filing an appropriate application,

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever,

(iii) The petitioner shall not seek unnecessary adjournments and do any other act to hamper the progress of the trial.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO of the concerned police stationand the Court.

(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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 the Court for cancellation of the bail.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.

A copy of this order be sent to the Superintendent, Sub Jail, Solan, District Solan, H.P. and the learned Trial Court by FASTER.

A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.