Ravi vs State Of Himachal Pradesh

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Sandeep Sharma, J

By way of instant petition filed under S.439 CrPC, prayer has been made on behalf of the bail petitioner Ravi, who is behind the bars since 12.2.2022 for grant of regular bail in case FIR No. 23, dated 12.2.2022 registered at Police Station Barmana, District Bilaspur, Himachal Pradesh under Ss.20 & 29 of the Narcotic Drugs and Psychotropic Substances Act.

Respondent State has filed status report and ASI Anil Kumar, PS Barmana, District Bilaspur, Himachal Pradesh has come present with records. Records perused and returned.

Close scrutiny of record/status report reveals that on 12.2.2022, police party present at naka laid near Kainchi More, Barmana NH No. 154, stopped a pickup bearing registration No. PB-11BR-5129 for checking but since after seeing the police, the occupant of the vehicle got perplexed and started making excuses, police after having associated independent witnesses conducted search of the vehicle as well as driver and allegedly recovered one carry bag containing 3.202 kg charas/ cannabis. Since no plausible explanation came to be rendered on record by the bail petitioner qua possession of aforesaid quantity of the contraband, police after having completed necessary codal formalities lodged FIR, as detailed herein above and since then the bail petitioner is behind the bars. Since investigation in the case is complete and nothing remains to be recovered from bail petitioner coupled with the fact that there is an inordinate delay in conclusion of trial and co-accused Rahul Kumar already stands granted bail vide judgment dated 27.6.2023 in Cr.MP(M) No. 845 of 2023 passed by this Court, prayer has been made on behalf of the bail petitioner for grant of regular bail.

While fairly acknowledging the factum with regard to filing of Challan in the competent court of law, Mr. Vishal Panwar, learned Additional Advocate General states that though nothing remains to be recovered from 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 as such, his prayer for bail deserves outright rejection. Mr. Panwar states that there is overwhelming evidence on record suggestive of the fact that bail petitioner indulges in illegal trade of narcotics as such, in the event of being enlarged on bail, he may not only flee from justice but may again indulge in such activities. He states that since ten prosecution witnesses out of eighteen stand examined, prayer made on behalf of the bail petitioner for grant of bail on the ground of inordinate delay, is not tenable.

Mr. Ajit Sharma, learned counsel for the petitioner, while refuting the aforesaid submission made on behalf of the learned Additional Advocate General, states that bail petitioner has been falsely implicated as such, he deserves to be enlarged on bail. He states that bare perusal of order dated 14.2.2022 passed by learned Judicial Magistrate First Class Bilaspur, Himachal Pradesh, while disposing of an application filed by ASI Baljeet Singh under S.52 of the Act itself suggests that only two representative samples weighing 30 grams each were drawn and sent to FSL for chemical analysis, that too without making the entire bulk homogenous, as such, recovery, if any, can be said to be of 60 grams, which is an intermediate quantity. If it is so, bail petitioner deserves to be enlarged on bail.

Having heard learned counsel for the parties and perused material available on record, this court finds that on the date of alleged incident, contraband was recovered in the presence of independent witnesses, as such, learned counsel for the petitioner may not be right in contending that bail petitioner has been falsely implicated. However, this court finds from the record that Magistrate, while disposing of application under S.52 of the Act, moved by ASI, drew two representative samples of 30 grams each, for sending the same to the FSL for chemical analysis that too without making the entire bulk homogenous.

In order dated 14.2.2022, learned Magistrate has recorded that nature of contraband is such that it is not possible to prepare a homogenous mixture as such, only two representative samples weighing 30 grams each, were taken and sent to FSL. As per status report and order dated 14.2.2022 passed by learned Magistrate, contraband was in the shape of balls.

Though, Mr. Vishal Panwar, learned Additional Advocate General, vehemently argued that having regard to the nature of contraband, it was not possible to make entire bulk homogenous but this court, finds no merit in the afore submission for the reason that entire contraband, may be in the shape of balls, could be grinded to make it homogenous. It is not the case of the prosecution that nature of contraband was such that it was not possible to make mixture of the same. Sample could be drawn by making mixture of entire contraband but since in the case at hand, only two representative samples weighing 30 grams each that too without making the entire bulk homogenous, were drawn, recovery, if any, can be said to be of 60 grams. In this regard, reliance is placed upon the judgment passed by Division Bench of this Court in Cr. Appeal No. 427 of 2019, titled Jhallo Ram v. State, decided on 1.8.2022, wherein it has been held as under:-

“26. Thus, from the entirety of evidence available on record, we are convinced that the sample of 26 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellant cannot be held to have been found in conscious possession of 5 k.g. 30 grams of charas. The appellant can only be held to be in possession of 26 grams or at the most 52 grams of charas by including the weight of other sample, which as per Act is small quantity.”

Though, in the case at hand, quantity of Charas allegedly was shown to 3.196 kg but since only two samples weighing 30 grams each were sent for chemical analysis, that too without making the entire bulk homogenous, recovery can be said to be of 60 grams, which is an intermediate quantity. On account of recovery of an intermediate quantity of Charas, rigours of S.37 of the Act are not attracted. Though, the case at hand is to be decided by learned court below in the totality of evidence led on record by Investigating Agency, but having taken note of the aforesaid glaring aspect of the matter, there appears to be no reason for this court to let the bail petitioner incarcerate in bail for an indefinite period during trial, especially when rigours of S.37 of the Act are not attracted coupled with the fact that the bail petitioner is behind the bars for the last one year and four months.

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 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 registered 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. 2,00,000/-with two local sureties 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.