Naresh Chauhan vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, Naresh Chauhan, who is behind the bars since 12.4.2022, has approached this Court in the instant proceedings filed under S.439 CrPC, for grant of bail in FIR No. 37, dated 17.4.2022 under S.21 of the Narcotic Drugs and Psychotropic Substances Act registered at Police Station Shillai, District Sirmaur, Himachal Pradesh.

Pursuant to order dated 11.4.2023, respondent-State has filed the status report and investigating officer has come present with records. Records perused and returned.

Close scrutiny of status report/record reveals that that police after having received secret information that the bail petitioner indulges in illegal trade of narcotics, raided his shop and allegedly recovered 11 bottles (containing 100 ml) of cough syrup containing Codeine Phosphat. Since no plausible explanation qua possession of the commercial quantity of contraband came to be rendered on record by the bail petitioner and occupants of the car, police after completion of codal formalities, lodged FIR, as detailed herein above against them and since then the bail petitioner is behind the bars . Since investigation is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court for grant of bail.

Material adduced on record alongwith bail petition further reveals that prior to petition at hand, bail petitioner filed CrMP(M) No. 1489 of 2022, but the same was dismissed as withdrawn, with specific direction to the learned court below to conclude the trial within six months but since learned court below has not been able to conclude the trial, bail petitioner has approached this Court for grant of regular bail on the ground of inordinate delay in conclusion of trial.

While, fairly admitting the factum with regard to filing of Challan in the competent court of law, learned Additional Advocate General states that though nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and his prayer for grant of bail, deserves outright rejection. Mr. learned Additional Advocate General states that since commercial quantity of contraband came to be recovered in the case at hand, rigours of S.37 of the Act are attracted and as such, petition having been filed by the bail petitioner deserves outright rejection.

Mr. Rajan Kahol, learned Additional Advocate General states that the bail petitioner had been indulging in illegal trade of narcotics having adverse impact upon the society as such, it may not be in the interest of justice to enlarge him on bail, as in that event, he may not only flee from justice but may indulge in such activities again. He states that since trial has commenced and three prosecution witnesses out of 16 have been examined, prayer made on behalf of the bail petitioner for grant of bail on the ground of delay is not tenable.

Having heard learned counsel for the parties and perused the record, this court finds that 11 bottles of cough syrup containing Codeine Phosphate (100 ml) were recovered from the shop of the bail petitioner in the presence of independent witnesses, as such, there is no force in the submission of learned counsel for the petitioner that the bail petitioner has been falsely implicated in the case. Though learned counsel for the petitioner claims that only 11 bottle of cough syrup containing Codeine Phosphate came to be recovered from the conscious possession of the bail petitioner but since commercial quantity of contraband came to be recovered from the bail petitioner, as such, rigours of S.37 of the Act are attracted. Careful perusal of provisions of S.37 of the Act nowhere suggests that court is estopped from granting bail in cases involving commercial quantity of contraband, rather, in such like cases, court after having afforded opportunity of hearing to the Public Prosecutor can always grant bail to the accused, if it is satisfied that the accused has been falsely implicated and there is no possibility of the accused indulging in such activities again.

Though, in the case at hand, learned counsel for the petitioner has not been able to point out any specific circumstances suggestive of the fact that the bail petitioner has been falsely implicated in the case, but having taken note of the fact that in the past, no case under Narcotic Drugs and Psychotropic Substances Act stands registered against the bail petitioner, this court has reasons to presume and believe that in event of being enlarged on bail, bail petitioner may not indulge in such activities again. Apart from this, this court cannot lose sight of the fact that bail petitioner is 45 years of age and is behind the bars for the last one year. Besides this, earlier bail petition filed by the petitioner was dismissed as withdrawn with direction to learned court below to conclude the trial within six months, but till date, prosecution has examined only three witnesses, meaning thereby further time is likely to be consumed in the conclusion of trial and in case the bail petitioner is allowed to incarcerate in jail for an indefinite period during trial, same would amount to pre-trial conviction, which is not permissible in law. Otherwise also, it is pleaded by learned counsel for the petitioner that the shop of the present bail petitioner has been closed on account of bail petitioner being in custody and as such, family of the bail petitioner is suffering.

Learned counsel for the petitioner while inviting attention of this court to judgments dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023, titled Puran Chand v. State of HP and Prem chand v. State of HP., submitted that in similar facts and circumstances, coordinate Bench of this Court as well as this Court enlarged the accused on bail on the ground of inordinate delay. Having perused aforesaid judgments passed by the coordinate Bench of this Court, this Court finds that in both the cases, commercial quantity of contraband was recovered from the accused, but yet court having taken note of the fact that they were behind the bars for more than three years, proceeded to enlarge them on bail.

Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1. 8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.

Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.

Recently, Hon'ble Apex Court in SLP(Crl) No. 1904 of 2023 titled Sunil Kumar v. The State of Himachal Pradesh , decided on 29.3.2023, has ordered enlargement of petitioner therein, who was behind bars for one and half years, on the ground of delay in trial and conduct of the petitioner

Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail, especially in the cases where rigors of Section 37 are attracted.

In the instant case, bail petitioner is behind bars for more than one and half year and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial, keeping in view the fact that the bail petitioner is a first offender and there is no other case against him, apart from the present one.

Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. 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 cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been 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 the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 1,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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.

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 application alone. The petition stands accordingly disposed of.

The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.