Manoj Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, Manoj Kumar, who is behind the bars since 21.1.2020, has approached this Court in the instant proceedings filed under Section 439 CrPC for grant of regular bail in FIR No. 9 dated 21.1.2020 registered at Police Station Sadar, Solan, District Solan, Himachal Pradesh under S. 21 of Narcotic Drugs and Psychotropic Drugs Act registered at Police Station Sadar, District Solan, Himachal Pradesh.

Perusal of status report filed by the respondent-State in terms of order dated 11.8.2020, reveals that on 21.1.2020, police after having received a secret information that prohibited drug can be recovered from the room of the bail petitioner, raided the house of the bail petitioner in the presence of independent witness and allegedly recovered 8.949 grams of heroin. Since no plausible explanation ever came to be rendered on record qua possession of the aforesaid quantity of the contraband, Poilce, after completion of necessary codal formalities, registered FIR in question on 21.1.2020 and since then, bail petitioner is behind the bars.

Mr. Arvind Sharma, learned Additional Advocate General, while fairly admitting the factum with regard to completion of investigation and filing of 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 the bail petitioner coupled with the fact that one case under the provisions of Narcotic Drugs and Psychotropic Substances Act, stands already registered against the bail petitioner, he does not deserve any leniency, as such, prayer made in the present petition for grant of bail may be rejected outrightly.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of alleged incident, 8.949 grams of contraband came to be recovered from the room of the bail petitioner in the presence of independent witnesses and as such, it cannot be said that the bail petitioner has been falsely implicated, however, having taken note of the fact that bail petitioner is a drug addict and he had purchased the prohibited drugs for his own consumption, as is evident from the status report, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period during trial, rather, he needs to be sent for medical treatment so that he is brought back into the mainstream. No material worth credence has been led on record suggestive of the fact that the bail petitioner had been indulging in illegal trade of narcotics. Investigating agency in its status report has categorically admitted that the bail petitioner is a drug addict and he had been purchasing drugs from some foreign nationals staying in Delhi, with the help and aid of some rickshaw puller.

Be that as it may, quantity of drug allegedly recovered from the conscious possession of the bail petitioner is an 'intermediate' quantity as such, rigours of S.37 of the Act ibid are not attracted in the present case, as such, there is no complete bar for this Court to consider the prayer made in the instant petition for grant of bail at this stage.

True it is that as per status report, bail petitioner stands already booked in one case under Act ibid but, guilt, if any of the bail petitioner in that case is yet to be established on record and as such, pendency of that case cannot be a ground for this Court to reject the petition at hand, which otherwise needs to be considered on its own merit. Moreover, Hon'ble Apex Court and this Court in a catena of judgments have held that a person is deemed to be innocent, till the time his/her guilt is proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be established on record by the investigating agency by leading cogent and convincing evidence on record as such, there appears to be no justification to let the bail petitioner incarcerate in jail, for an indefinite period during trial, which is further likely to be delayed on account of Covid-19 pandemic. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by imposing stringent conditions upon the bail petitioner.

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 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. The Hon'ble Apex Court has held 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."

In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court 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.

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 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 the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2,00,000 with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned trial Court concerned, 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.

(e) He shall surrender passport, if any, held by him.

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.