Raghuvir Singh vs State Of H.P.

Sandeep Sharma, J

Bail petitioner namely, Raghuvir Singh, who is behind the bars since 1.9.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.202/2019, dated 30.8.2019, registered at police Station, Sadar, District Bilaspur Himachal Pradesh, under Section 21 & 29 of the Narcotic Drugs & Psychotropic Substances Act,1985 ( For short ' Act') .

Sequel to order dated 20.9.2019, ASI Raj Kumar has come present alongwith the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.

Record/ status report made available to this Court reveals that on 30.8.2019, police party present at Nauni Chowki, National Highway­205, stopped PRTC bus bearing registration No. PB­65­AS­0792 for checking. Allegedly, person namely, Karan Thakur, who was sitting on seat No.29 at the time of alleged incident, got perplexed after seeing the police party. Police in the presence of independent witnesses allegedly recovered 82.37 grams of Heroin from the conscious possession of co­accused Karan Thakur. After completion of codal formalities, police lodged FIR, as detailed hereinabove, against the bail petitioner. During investigation, person namely, Karan Thakur revealed to the police that he had brought Heroin allegedly recovered from him at the askance of persons namely, Mohammad Sumer and present bail petitioner. On the basis of aforesaid statement made by co­accused Karan Thakur, from whose conscious possession 82.37 grams of Heroin was recovered, police registered case against the present bail petitioner as well as other co­accused Mohammad Sumer. Since 1.9.2019 present bail petitioner is behind the bars, whereas other co­accused Mohammad Sumer has been released on bail by the learned Special Judge, Bilaspur, District Bilaspur, H.P. Though, present bail petitioner had applied for regular bail in the Court of learned Special Judge, Bilaspur, but his such request was not acceded to by the learned Court below on the ground that in past also he had been indulging in illegal trade of narcotics.

Mr. Sudhir Bhatnagar, learned Additional Advocate General, on the instructions of Investigating Officer, fairly stated that though investigation in the case is complete, save and except voice sample, which is yet to be received from FSL, but strenuously argued that keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, his prayer for grant of bail deserves out right rejection. Learned Additional Advocate General while making this Court to peruse the record, strenuously argued that it stands duly established on record that contraband allegedly recovered from the conscious possession of co­accused Karan Thakur was being smuggled/carried at the behest of present bail petitioner, who in past had been also indulging in such activities and as such, present bail petition may be dismissed.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that 82.37 grams of Heroin admittedly came to be recovered from the conscious possession of co­ accused Karan Thakur, who otherwise stands enlarged on bail by the order passed by learned Special Judge, Bilaspur, H.P. It is not in dispute that name of present bail petitioner came to be included in the FIR on the statement given by main accused Karan Thakur, who alleged that he was carrying contraband at the behest of present bail petitioner and other person namely, Mohammad Sumer, but this Court cannot loose sight of the fact that allegation with regard to connivance, if any, of present bail petitioner with the main accused Karan Thakur is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence. No doubt, CDRs ( call detail record) collected on record by the Investigating Agency, reveals that on the date of alleged incident present bail petitioner was in constant touch with the main accused Karan Thakur, but that may not be sufficient at this stage to conclude that contraband admittedly recovered from the conscious possession of main accused Karan Thakur was being smuggled/carried at the behest of present bail petitioner. Interestingly, in the case at hand main accused Karan Thakur, from whose conscious possession 82.37 grams of Heroin came to be recovered stands enlarged on bail, whereas present bail petitioner, allegations against whom is that he had asked Karan Thakur to smuggle/carry contraband, is behind the bars that too on the basis of the statement made by the person, from whose conscious possession 82.37 grams of Heroin, came to be recovered.

Learned Special Judge, Bilaspur while considering the application made on behalf of the present bail petitioner for grant of regular bail has wrongly recorded the fact that 82.37 grams of Heroin came to be recovered from the conscious possession of bail petitioner, rather it is an admitted case of the Investigating Agency that recovery of contraband came to be effected from the conscious possession of co­accused Karan Thakur, who stands enlarged on bail. No doubt, record reveals that one case under ND&PS Act stands already registered against the present bail petitioner, but guilt, if any, of bail petitioner in that case is yet to be established and as such, same could not be a ground for the learned Court below to reject the bail of the present bail petitioner, especially when no recovery of contraband, if any, ever came to be effected from his conscious possession. Connivance, if any, of present bail petitioner in the alleged commission of offence is yet to be established on record by Investigating Agency and as such, freedom of bail petitioner cannot be ordered to be curtailed for an indefinite period during trial.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but having noticed aforesaid glaring aspect of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period during trial.

It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. In the case at hand, the guilt, if any, of the bail petitioner is yet to be proved, in accordance with law.

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:

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 first­time 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 Re­Inhuman Conditions in 1382 Prisons

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."

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 Apex Court in Prasanta Kumar Sarkar versus 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.

In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to furnishing personal bonds in the sum of Rs.2.00 Lakh with two local sureties in the like amount each to the satisfaction of concerned Chief Judicial Magistrate/ 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.

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

It is clarified that if the petitioner misuses the liberty or violate 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.