Kamal vs State Of Himachal Pradesh

Sandeep Sharma, J

Sequel to order dated 6.7.2021, whereby petitioner namely Kamal was ordered to be enlarged on bail, in the event of his arrest in FIR NO. 72,

dated 28.3.2021, under Ss. 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station Sadar, District Mandi,

respondent-State has filed the status report, perusal whereof reveals that pursuant to order dated 6.7.2021, petitioner has not only joined the

investigation but has also rendered full cooperation enabling investigating agency to complete the investigation. Aforesaid status report reveals that on

28.3.2021, police party stopped bus bearing registration No. HP-36E-5137, coming towards Pandoh, near Brindabani. Since person sitting on seat No.

35, got perplexed after seeing the police, police after associating two independent witnesses, conducted his personal search and allegedly recovered

166 grams of charas. Since no plausible explanation came to be rendered on record by the above said person for the possession of aforesaid quantity

of contraband, police, after completion of necessary codal formalities, lodged FIR detailed herein above against said person whose name was

disclosed to be Krishan Kumar, on 28.3.2021. During investigation of the case, Krishan Kumar disclosed to the police that he alongwith present bail

petitioner-Kamal, had gone to Manikaran and from there, they purchased aforesaid quantity of charas from one Nepali person, for Rs.15,000/-.

Though, the present bail petitioner and Krishan Kumar had gone to Manikaran on motor cycle bearing registration No.. HP-24B-1885, but while

coming back, Kamal dropped Krishan Kumar at Pandoh, from where he boarded bus bearing registration No.HP-36E-5137 and subsequently, came to

be arrested by the police. On the aforesaid disclosure made by Krishan Kumar, present bail petitioner namely Kamal came to be named in the FIR.

Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, coupled with the fact that the main accused

Krishan Kumar, from whose conscious possession, 166 grams of charas came to be recovered, stands enlarged on bail, present bail petitioner has

approached this Court in the instant proceedings, for grant of regular bail.

Mr. Arvind Sharma, learned Additional Advocate Genera, while fairly admitting the factum with regard to joining of investigation by the bail

petitioner in terms of order dated 6.7.2021, contended 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 the bail petitioner, he does not deserve any leniency.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of alleged offence, 166

grams of charas was recovered from the conscious possession of co-accused, Krishan Kumar, who subsequently disclosed to the police that he

alongwith present bail petitioner had gone to Manikaran, to buy charas. Interestingly, Krishan Kumar, who was apprehended with the intermediate

quantity of contraband, stated before the police that Kamal Kumar dropped him at Pandoh, from where he took bus, but this statement of Krishan

Kumar is not sufficient to conclude complicity of the present bail petitioner in the alleged offence. Even if for the sake of arguments, it is presumed

that the present bail petitioner, Kamal had gone to Manikaran alongwith Krishan Kumar, to buy charas from some Nepali, that may not be sufficient to

arrive at a conclusion that the present bail petitioner actively participated in the commission of alleged offence, especially when contraband was

recovered from the conscious possession of co-accused, Krishan Kumar, who at the relevant time was traveling in the bus and not on the motor cycle

alongwith the present bail petitioner. The question that, “whether, the present bail petitioner had accompanied Krishan Kumar and he had gone to

Manikaran to by contraband, needs to be determined in the totality of the evidence collected on record by the investigating agency.

Leaving everything aside, Krishan Kumar, from whose conscious possession, contraband came to be recovered, already stands enlarged on bail by

learned Special Judge below, as has been fairly admitted by respondent-State in the status report.

Otherwise also, having taken note of the fact that an intermediate quantity of contraband is involved in the case at hand, rigours of S.37 of the Act

are not attracted, as such, prayer made in the instant petition for grant of bail, deserves to be considered. There is nothing in the status report

suggestive of the fact that in the past petitioner had been indulging in such activities rather, as per own case of the prosecution, present bail petitioner

and co-accused Krishan Kumar being drug addicts, had gone to Manikaran to fetch charas. In the aforesaid facts and circumstances, there is no

justification for the custodial interrogation of the present bail petitioner, who otherwise also, has joined the investigation pursuant to order passed by

this Court and is rendering full cooperation in the investigation. Apprehension expressed by learned Additional Advocate General, that in the event of

being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent

conditions.

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.

Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held 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.

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the 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.

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in

mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence

and witnesses being influenced.

In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed and order dated 6.7.2021 is made absolute,

subject to the bail petitioner furnishing fresh bail bonds in the sum of Rs.50,000/- with one local surety in the like amount, to the satisfaction of the

investigating officer, 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.

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.