Sahab Deen vs State Of Himachal Pradesh

Sandeep Sharma, J

Sequel to order dated 30.6.2020, petitioner, whereby petitioner was ordered to be enlarged on interim bail in the event of arrest in FIR No. 37, dated 30.3.2020, under Ss. 15 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police Station Majra, District Sirmaur, HP, respondent state has filed status report, perusal whereof reveals that on 29.3.2020, police apprehended one motor cycle bearing registration No. HR-71E-8893 allegedly being driven by co-accused Irfan Khan and recovered 9.114 kg of poppy husk. Status report reveals that driver of aforesaid motor cycle i.e. Irfan Khan as well as present bail petitioner, who was pillion rider, fled away from the spot leaving behind motor cycle and carton box containing 9.114 kg poppy husk as well as other grocery items, but while fleeing from the spot, co-accused dropped his mobile, which was subsequently picked up by a Forest Guard-Ram Singh. On the basis of call details of the mobile phone, allegedly dropped by one of the co-accused, police started investigation and found that the motor cycle bearing registration No. HR - 71E - 8893 was in the name of Alias Ahmed son of Abbal Husain, who disclosed to the police that he has already sold the same by way of an affidavit to co-accused Irfan Khan. On the basis of aforesaid information collected by investigating agency, FIR detailed herein above, came to be lodged against the bail petitioner and Irfan Khan. Irfan Khan has been ordered to be enlarged on interim bail by this Court in CrMP(M) No. 656 of 2020., decided on 16.6.2020.

Mr. Kunal Thakur, learned Deputy Advocate General while fairly admitting that pursuant to direction issued by this Court, bail petitioner has joined the investigation, contended that keeping in view gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, rather he deserves to be dealt with severely. Learned Deputy Advocate General hile admitting that co-accused Irfan Khan stands released on bail, contended that since there is ample evidence available on record, suggestive of the fact that on the date of alleged incident, huge quantity of poppy husk was being smuggled by bail petitioner and co-accused namely Irfan Khan, prayer made on behalf of the bail petitioner for grant of bail, may not be accepted. Lastly learned Deputy Advocate General contended that in the event of bail petitioner being enlarged on bail, he may flee from justice since he belongs to State of Haryana.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of alleged incident, no person allegedly driving motor cycle bearing registration No. HR- 71E-8893 was caught on the spot, as such, there is nothing on record suggestive of the fact that at the time of alleged incident, persons present on the spot had recognized bail petitioner as well as other co-accused, because, as per own case of the investigating agency, case against the bail petitioner and co-accused came to be lodged on the basis of call details of the phone allegedly dropped on the spot by one of the co-accused, while fleeing from the spot. One of the co-accused i.e. Irfan Khan, with a view to prove his innocence has placed on record one affidavit suggestive of the fact that the motor cycle was actually sold to him by Alias Ahmed one month after the alleged incident, but, investigating agency has not investigated the case from that angle. Leaving everything aside, this Court finds that on the date of alleged incident, intermediate quantity i.e. 9.114 kg of poppy husk came to be recovered from the carton box being carried by the bail petitioner as well as co-accused on the motor cycle in question, as such, rigours of S.37 of the Narcotic Drugs & Psychotropic Substances Act are not applicable to the present case.

Though the aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having taken note of the fact that investigation is complete and nothing remains to be recovered from the bail petitioner, there is no justification to curtail the freedom of the bail petitioner for an indefinite period during trial, especially when guilt, if any, of the bail petitioner is yet to be proved in accordance with law. Moreover, co-accused Irfan Khan, who allegedly was driving the motor cycle in question, stands already enlarged on bail. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions. Otherwise also, in the wake of spread of Covid-19 disease, trial may not be concluded in the near future, in which case, bail petitioner would be further detained in jail, resulting in curtailment of his freedom for a longer period.

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 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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 Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court 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.

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 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 the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Order dated 30.6.2020 is made absolute, subject to the petitioner furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety in the like amount, to the satisfaction of the Magistrate available at the station, besides the 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 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 petition alone.

The petition stands accordingly disposed of.