Pankaj Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely Pankaj Kumar, who is behind the bars since 30.1.2023, has approached this Court in the instant proceedings filed under S. 439 CrPC, for grant of bail in FIR No. 31, dated 30.1.2023, registered at Police Station Sadar, District Mandi, Himachal Pradesh under S.20 of the Narcotic Drugs and Psychotropic Substances Act.

Respondent-State has filed status report and investigating officer has come present with record. Perusal of status report as well as record reveals that on 30.1.2023, police party present at Naka laid near Bhuili Chowk Mandi, stopped Jeep No. HP-74A-3102 for checking, but since driver of the vehicle fled from the spot, message was given at Police Station and ultimately said vehicle was apprehended near petrol pump. Since occupants of the vehicle were perplexed after seeing the police, police deemed it necessary to cause their search and search of vehicle. Allegedly in the presence of independent witnesses, police recovered 144 grams of charas from the bag kept under blanket laid on the seat of the vehicle. Since occupants of the vehicle were unable to render any explanation for/ qua possession of aforesaid quantity of contraband, police after completion of codal formalities, lodged FIR and since then the bail petitioner is behind the bars but co-acsued namely Amit and Sunil stand enlarged on bail. Though petitioner herein had also applied for bail alongwith two co-accused but his prayer was rejected on the ground that one criminal case is pending against him. Since investigation is complete and nothing remains to be recovered from the bail petitioner, he has approached this court for grant of bail.

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 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. While fairly admitting factum with regard to grant of bail to other co- accused, learned Additional Advocate General states that there is overwhelming evidence available on record suggestive of the fact that bail petitioner alongwith other two accused had been indulging in the illegal trade of narcotics as such, it may not be in the interest of justice to enlarge the bail petitioner on bail, because in that event, he may not only flee from justice but may indulge in such activities again.

Having heard learned counsel for the parties and perused the record, this court finds that the vehicle, from which the contraband was recovered was not being driven by the bail petitioner but by Sunil Kumar, who already stands enlarged on bail. It is not the case of the prosecution that the contraband was recovered from the conscious possession of the bail petitioner, rather the same was recovered from bag kept under blanket laid on the seat of the vehicle. Since Sunil Kumar owner and driver of the vehicle stands enlarged on bail, prayer made on behalf of present bail petitioner also deserves to be considered.

Since an intermediate quantity of contraband came to be recovered from the vehicle being driven by co-accused Sunil Kumar, rigous of S.37 of the Act are not attracted. No doubt, status report reveals that one criminal case is pending adjudication against the bail petitioner, but same is not under Narcotic Drugs and Psychotropic Substances Act rather under S.323 IPC. Since case registered against the bail petitioner is yet to be decided, it may be too premature to conclude guilt, if any of the bail petitioner and same cannot be a bar for this court to consider the prayer of the bail petitioner for bail.

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 Assistant 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 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 above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing personal bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned trial Court, 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.

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 order presented to it, same may be ascertained from the official website of this Court.