Rohit Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

(Through Video Conferencing)

By way of present petition filed under Section 439 of Cr.PC, prayer has been made on behalf of the bail petitioner namely Rohit Kumar, who is

behind the bars since 31.10.2020, for grant of regular bail in connection with FIR No. 61/2020, dated 31.10.2020 under Section 20 of Narcotic Drugs

and Psychotropic Substance Act, 1985, (in short “the Actâ€​) registered at P.S. Nerwa, District Shimla, H.P.

Perusal of status report having been filed by the respondent-State reveals that on 31.10.2020, bail petitioner was going to Bharanu from Dwara on

foot but since he, after having seen the police, got perplexed and made an attempt to run away, Police apprehended him and inquired about the

reasons for his fear. Since the bail petitioner was unable to render proper explanation for his abnormal behaviour, police associated independent

witnesses and carried out his personal search and search of the carry bag being carried by him and allegedly recovered 900 grams of charas. Since

the petitioner was unable to tender proper explanation with regard to possession of aforesaid quantity of contraband, police after completion of

necessary codal formalities, registered FIR detailed herein above against the petitioner and since then he is behind bars. Though investing agency,

after having completed investigation, prepared challan but the same has not been filed till date.

Shri Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting that nothing remains to be recovered from bail petitioner,

contends that keeping in view gravity of offence alleged to have been committed by petition he does not deserve any leniency, rather, his prayer for

grant of bail deserves to be rejected outrightly. While making this court peruse record, Mr. Bhatnagar submits that there is ample evidence collected

on record by the investigating agency suggestive of the act that at the time of alleged incident, bail petitioner was carrying 900 grams of charas and as

such, his release on bail at this stage, would have adverse impact on society. Lastly Mr. Bhatnagar submits that otherwise also, in the event of being

enlarged on bail, he may not only flee from justice rather may again indulge in such activities,as such, his prayer for grant of bail may be rejected.

Having heard learned counsel for parties and perused status report placed on record by the respondent-State, this court finds that on the date of

alleged incidence, 900 grams charas was allegedly recovered from the carry bag being carried by the bail petitioner in the presence of two

independent witnesses as such, it is difficult at this stage to accept submission of learned counsel for the bail petitioner, that the bail petitioner has been

falsely implicated. However, having taken note of the fact that the bail petitioner is 19 years of age and at present pursuing studies of BA 1st year,

prayer made on his behalf deserves to be considered sympathetically. Otherwise also, status report filed by the respondent-State does not suggest that

in the past bail petitioner had been indulging in such activities, rather he appears to be a first offender. No doubt, quantity of Charas allegedly

recovered from conscious possession of bail petitioner does suggests that he is not only a drug addict rather, may be a part of some racket indulging in

trade of drugs but still having taken note of his tender age and past history, he needs to given a chance to rectify his mistake. Otherwise also, taking

note of quantity of contraband, which is intermediate, rigors of S. 37 of Act are not attracted to this case, as such, during the pendency of

investigation/trial, he can be ordered to be enlarged on bail. Since examination of bail petitioner of first year are likely to be held in March, 2021, it may

not be proper to keep the bail petitioner behind bars for an indefinite period during trial. Otherwise guilt if any of the bpi is yet to be established in

accordance with law by the invstigating agency by leading cogent and convincing evidence, as such, this Court sees no reason to let the bail petitioner

incarcerate in jail, for an indefinite period during trial, which in any eventuality is likely to be delayed on account of covid-19. Otherwise also Hon'ble

Apex Court as well as this Court have held in catena of judgments, that till the time, guilt of a person is not proved in accordance with law, he/she is

deemed to be innocent.

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 has 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.

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.

In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, bail 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. 1,00,000/- with one local surety in the like amount to the satisfaction of learned Chief Judicial Magistrate/Judicial Magistrate First Class,,

Chopal 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 handover passport, if any, to the Investigating Agency.

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.

Dasti on usual terms.