Sahil Batta vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely Sahil Batta, who is behind the bars since 21.2.2020, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in case FIR No. 23 of 2020 dated 21.2.2020, under Section 20 of the NDPS Act, registered at PS Banjar, District Kullu, H.P.

Pursuant to order dated 10.3.2023, respondent-State has filed the status report and ASI Shesh Raj, PS Banjar Kullu, H.P., has come present with records. Records perused and returned.

Close scrutiny of status report/record reveals that that on 21.2.2020, at 5:15 AM, police stopped one car bearing registration No. PB48D8213 for checking near Fagu Pul, Banjar District Kullu and after having associated independent witnesses recovered one bag from the rear seat of the car containing 4.6 kgs of charas. Since no plausible explanation ever came to be rendered on record qua the possession of the aforesaid quantity of contraband by occupants of the car, police after completion of necessary codal formalities lodged the FIR as detailed herein above and since then, he is behind the bars. Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner and there is inordinate delay in the conclusion of the trial, he has approached this Court in the instant proceedings for grant of regular bail.

Mr. Vishal Panwar, learned Additional Advocate General while fairly admitting factum with regard to filing of challan in the competent court of law contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. He states that there is overwhelming evidence available on record suggestive of the fact that bail petitioner herein was involved in the illegal transportation of the commercial quantity of contraband and as such, he cannot claim to have been falsely implicated. While making this Court peruse the status report as well as record, learned Additional Advocate General states that after having seen the police, person seating on the front seat threw the bag containing Charas to the rear seat where the present bail petitioner was sitting and at the time of recovery, no claim, if any, ever came to be made by the petitioner that bag does not belong to him. He states that otherwise also, since recovery came to be effected from the car, all the occupants travelling in the car are liable to be prosecuted for their having indulged in the illegal trade of the narcotics. Lastly, Mr. Panwar, states that in the event of petitioner’s being enlarged on bail, he may indulge in such like activities again and as such, prayer made for grant of bail deserves outright rejection.

Having heard the learned counsel representing the parties and perused material available on record, this court finds that commercial quantity of contraband came to be recovered from the vehicle in question being driven by co-accused Gulshan Kumar, who is the owner of the vehicle also. No doubt, at the time of the recovery, present bail petitioner was one of the occupant of the car, from where commercial quantity of contraband came to be recovered, but since it is own case of the prosecution that person sitting on the front seat of the car after having seen the police threw the bag on the rear seat where present bail petitioner was sitting, it would be too premature at this stage to conclude guilt, if any, of the bail petitioner, rather to hold the petitioner guilty of his having committed offence punishable under Section 20 of the Act, prosecution is required to lead cogent and convincing evidence. Though learned Additional Advocate General vehemently argued that petitioner indulges in illegal trade of narcotics, but there is no evidence to prove the aforesaid fact, if any. As per own case of the prosecution, petitioner is first offender and as such, it would be too premature at this stage to conclude that petitioner is a drug paddler. No doubt, rigours of Section 37 are attracted in the present case, but bare perusal of provisions contained under S.37 nowhere suggests that no bail can be granted in cases involving commercial quantity rather in such cases, court after affording due opportunity of hearing to public prosecutor can proceed to grant bail, if it is satisfied that the bail petitioner has been falsely implicated and in the event of bail he will not indulge in such activities again. Question which needs determination is whether the provisions of Section 37 of the Act can be construed to have same efficacy through the trial notwithstanding the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial.

Since as per own case of the prosecution, vehicle from which contraband was recovered was of co-accused Gulshan Kumar, and person sitting on the front seat after having seen the police threw the bag on the rear seat, where present bail petitioner was sitting, this Court is of the view that at this stage, there is no direct evidence, if any, to connect the bail petitioner with the recovery of the commercial quantity of contraband. Similarly, having taken note of the fact that bail petitioner is a first offender and in past, there is no case registered against him, there is no reason to presume and believe that in the event of petitioner’s being enlarged on bail, he would again indulge in these activities. Leaving everything aside, this Court finds that bail petitioner is behind the bars for more than three years, and till date, prosecution has been able to examine 9-10 witnesses out of 22 witnesses. Status report reveals that court below has fixed the case for recording the statement of some of the witnesses on 8.8.2023. Since number of the prosecution witnesses are yet to be examined, there is every likelihood of delay in conclusion of the trial.

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.

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 3 years 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 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 Assistant 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. 1,00,000/- with one local surety 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.