Paramjit @ Pamma vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present bail petition filed under Section 439 Cr.PC, prayer has been made on behalf of the bail petitioner namely Paramjit alias Pamma

for grant of regular bail in FIR No. 122/2020 dated 22.8.2020, under Sections 21 and 29-61-85 of the ND&PS Act, registered at Police Station

Damtal, District Kangra, Himachal Pradesh.

Respondent State has filed the Status report in terms of order dated 21.5.2021. Record/status report reveals that on 22.8.2020, police party present

near Bhatia Stone Crusher, Damtal, saw one person coming on motorcycle, who after having seen police got perplexed and made an attempt to flee

from the spot but while doing so, engine of his motorcycle stopped and driver alongwith pillion rider namely Mamta, who is his wife, fell on the road.

Police after having reached the spot asked driver of the motor cycle reasons for turning his motorcycle but no plausible explanation came to be

rendered. While picking up motorcycle from the road, police noticed one polythene bag kept in visor of the motorcycle. Police opened the aforesaid

bag in the presence of independent witness namely Ajay and allegedly, recovered 9.86 grams of heroin. Driver namely Ranvir Kalsi disclosed to the

police that he himself is a drug addict and had procured the aforesaid quantity of contraband from the present bail petitioner Paramjit. He further

disclosed to the police that he alongwith his wife Mamta was to make payment to the present bail petitioner after selling aforesaid quantity of

contraband. In the aforesaid background, FIR referred herein above, came to be lodged against the present bail petitioner as well as other co-accused

Ranvir Kalsi and Mamta. Apprehending her arrest, bail petitioner filed anticipatory bail before this court, but since same was rejected police arrested

her on 5.1.2021 and since then she is behind bars. Other co-accused namely Ranvir Kalsi and Mamta, from whose conscious possession, contraband

came to be recovered, already stand enlarged on bail pursuant to order passed by the learned Additional Sessions Judge, Dharamshala. Since challan

stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, petitioner has approached this Court in the

competent court of law.

Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting factum with regard to 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 offence alleged to have been

committed by her, she does not deserve any leniency and as such, bail petition having been filed on her behalf may be rejected outrightly. While

making this Court peruse status report, learned Deputy Advocate General submits that present bail petitioner is a drug paddler and in past, five cases

stand registered her and as such, her prayer for grant of bail may not be accepted, who in the event of enlargement of bail, would not only flee from

justice, but may also indulge such like activities again.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that 9.86 grams of heroin came to be

recovered from visor ofthe motorcycle being driven by the co-accused Ranvir Kalsi. No doubt, in the case at hand, co-accused Ranvir Kalsi, disclosed

to the police that he had procured aforesaid quantity of contraband from the present bail petitioner, to whom, he had to give money after selling the

aforesaid quantity of contraband, but such fact if any, is yet to be established on record by the investigating agency by leading cogent and convincing

evidence on record. Interestingly, in the case at hand, no concrete material worth credence has been led on record to connect the present bail

petitioner with the recovery of contraband allegedly recovered from the conscious possession of the co-accused Ranvir Kalsi, and Mamta. Neither

investigating agency has placed on record call detail report to demonstrate that co-accused Ranvir and Mamta were in constant touch of the present

bail petitioner, nor any material has been placed on record to show financial transaction inter-se them. No doubt status report reveals that in past, five

cases also stand registered against the present bail petitioner under the NDPS Act, but pendency of such cases may not be a ground to reject the bail,

especially when no evidence connecting the present bail petitioner with recovery, is available on record.

True it is that offence alleged to have been committed by the bail petitioner is serious in nature having adverse impact on society, but since

contraband never came to be recovered from the conscious possession of the present bail petitioner, coupled with the fact that she is already behind

bars for approximately six months, prayer made on her behalf deserves to be considered. Besides above, this Court finds that petitioner is 60 years old

woman and as such, her prayer for grant of bail is required to be considered in the light of the provisions contained under proviso 1 to Section 437

Cr.PC, wherein it has been provided that court can direct a person referred to in clause (i) or clause (ii) of Section 437 Cr.PC to be released on bail if

such person is under the age of sixteen years or is a woman or is sick or infirm. Trial is yet to commence in the case at hand and as such, there is

every likelihood of further delay in conclusion of the trial on account of COVID- 19. This Court cannot loose sight of the fact that on account of

COVID - 19, courts below though have resumed normal working, but still evidence is being recorded in limited cases. Petitioner has already suffered

for approximately six months and in case, she is not enlarged on bail at this stage during trial, her further detention in judicial custody would amount to

pre-trial conviction. Besides above, intermediate quantity of contraband allegedly came to be recovered from the bail petitioner and as such, rigors of

section 37 of the Act are not attracted in the present case. Apprehension expressed by learned Additional Advocate General that in the event of bail

petitioner being enlarged on bail, she may flee from justice, can be best met by putting her to stringent conditions.

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, bail is not to be

withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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 Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-

“ The 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. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial

when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to

be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to

time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases,

“necessity†is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any

person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his

liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the

question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial

punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been

convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.â€​

In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon’ble Apex Court has held as under:-

 “ This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail,

had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial

when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is

deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a

caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of

disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him

to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against

conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the

interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining

the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and

circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21

of the Constitution was highlighted.â€​

The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles

to be kept in mind, while deciding petition for bail:

(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.

Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC

731, relevant para whereof has been reproduced herein below:-

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the

right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6

SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the

ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh

v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is

believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, 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. Hon’ble Apex Court further held that if an accused is not hiding from the investigating

officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an

appropriate case. The relevant paras of the aforesaid judgment are reproduced 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 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 her furnishing personal bond in the

sum of Rs. 1,00,000/- with two local surety each in the like amount to the satisfaction of concerned trial Court, with following conditions:

a. She shall make herself 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. She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. She shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing

such facts to the Court or the Police Officer; and

d. She shall not leave the territory of India without the prior permission of the Court.

e. She shall report to the concerned police station twice in a month.

It is clarified that if the petitioner misuses her liberty or violates any of the conditions imposed upon her, 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 bail petition stands accordingly disposed of.

Copy dasti.