Rajender Pal vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of instant bail petition filed under Section 438 of the Code of Criminal Procedure, prayer has been made on behalf of the petitioner for grant

of preÂarrest bail in case FIR No.62/2019, dated 10.4.2019, under Sections 20 & 29 of the Narcotic Drugs & Psychotropic Substances Act ( for

short “ND&PS Actâ€​),registered at police Station, Ghumarwin, District Bilaspur, Himachal Pradesh.

Sequel to order dated 26.6.2019, ASI Pyare Lal, has come present alongwith record. Mr. Sudhir Bhatnagar, learned Additional Advocate General,

has also placed on record fresh status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and

returned.

Careful perusal of the record/status report reveals that on 9.4.2019, police party, which had laid nakka near Petrol Pump (NH), Ghumarwin, District

Bilaspur, H.P., apprehended car (Alto k 10) bearing registration No. HPÂ23Â4869 coming from Ghumarwin side. On search, police recovered one

carton box containing 100 plastic bottles and on each bottle, level of Codeine Phosphate Triprovidine Hydrochloride Syrup RCÂKuff Cough Syrup 100

MI was affixed. Since, occupants of the vehicle namely, Sunil Kumar and Sher Singh were unable to produce permit, if any, with regard to aforesaid

bottles and as such, they were apprehended. After completion of codal formalities, police on 10.4.2019 lodged the FIR, as detailed hereinabove, under

Section 20 and 29 of the Act, against the occupants of the vehicle, as named hereinabove. During investigation, above named persons, disclosed that

they were handed over carton box containing contraband, as detailed hereinabove, by Amit Sharda proprietor of Sharda Medical Store, Ohar, Tehsil

Ghumarwin, District Bilaspur, H.P., for delivering the same to the present bail petitioner, who also runs a medical store at Danghar, Tehsil Ghumarwin,

District Bilaspur,H.P. During investigation, one person namely, Ankush, who happened to be salesman in the shop of Amit Sharda, also disclosed to

the police that persons namely, Sunil Kumar and Sher Singh had come in car No. HPÂ 23ÂAÂ4869 on the askance of the present bail petitioner to

take delivery from the shop of Sharda Medical Store. On the basis of subsequent revelations made by the occupants of the car apprehended during

nakka and the salesman of Sharda Medical Store, present bail petitioner came to be named in the FIR, as referred hereinabove.

Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly stating that pursuant to the orders passed by this Court, bail petitioner has

joined the investigation, contended that keeping in view the gravity of offences alleged to have been committed by the bail petitioner, he does not

deserve any leniency, rather needs to be dealt with severely. Learned Additional Advocate General also admitted that all the co accused have been

already enlarged on bail by the learned court below and at this stage, nothing is required to be recovered from the bail petitioner.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that at first instance, recovery,

if any, of the contraband came to be made from coÂaccused Sunil Kumar and Sher Singh,who at that relevant time were travelling in car bearing

registration No. HPÂ23ÂAÂ4869. If the statements made by above named persons are perused, though they stated that carton box containing

contraband was handed over to them by Amit Sharda, proprietor of Sharda Medical Store, Ohar, but they nowhere stated that they had gone to collect

the contraband on the askance of the present bail petitioner. It is another coÂaccused Ankush, who subsequently revealed that occupants of the car

No. HPÂ23ÂAÂ4869 had come to Ohar for taking consignment from Sharda Medical Store on the askance of present bail petitioner, who also run

chemist shop at Danghar. No doubt, record reveals that a sum of Rs. 8000/Â came to be transferred to the account of Amit Sharda, from where

alleged consignment was taken to be delivered at the shop of present bail petitioner, but it is not in dispute that present bail petitioner is also registered

chemist and in past also, he had been purchasing drugs from Amit Sharda, proprietor Sharda Medical store and as such, it cannot be said at this stage

that money, if any, sent by present bail petitioner was for the contraband allegedly recovered from the car in question occupied by co accused Sunil

Kumar and Sher Singh. It is not in dispute that contraband in the case at hand came to be recovered from the conscious possession of coÂaccused

Sunil Kumar and Sher Singh, who also not disclosed in their statements that they were asked by present bail petitioner to bring this consignment to his

shop. Whether subsequent revelations, if any, made by coÂaccused can be made basis for holding present bail petitioner guilty, is a matter of trial and

definitely, at this stage, it would be too early to conclude that entire transportation of contraband took place at the instance of the present bail

petitioner.

Though, aforesaid aspects of the matter are to be considered and decided by the learned court below on the basis of the totality of evidence to be

led on record by the investigating agency, but having taken note of the fact that contraband never came to be recovered from the possession of

present bail petitioner, this Court sees no reason for custodial interrogation of the present bail petitioner, who has otherwise, made himself available for

investigation.

It has been repeatedly held by Hon’ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period,

especially when his/her guilt 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 firstÂtime 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 ReÂ​Inhuman 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:Â​

“ 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€​

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 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.

Consequently, in view of the above, order dated 24. 5.2019, passed by this Court, is made absolute, subject to his furnishing personal bond in the

sum of Rs. 5,00,000/Â​ (Rs. five lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer, 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 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 his 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 bail petition stands disposed of accordingly. Copy dasti.