Sanjeev Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, namely Sanjeev Kumar, who is behind the bars since 2.6.2021, has approached this Court in the instant proceedings filed under

Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.77 of 2021, dated 2.06.2021, registered at

police Station, Sadar, District Solan, H.P. under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short

‘Act’).

Status report filed by the respondent-State on the basis of the investigation carried out by the Investigating agency, reveals that on 2.6.2021, police

after having received secret information, intercepted vehicle bearing registration No.HP-92-0951 at Chambaghat being driven by present bail

petitioner, Sanjeev Kumar and allegedly recovered 12.70 grams heroin from the dash board of the vehicle in question. At the time of aforesaid

recovery, one person apart from present bail petitioner namely, Aman Prashar was also sitting in the jeep. Since both the occupants of the vehicle

failed to render proper explanation qua the possession of aforesaid quantity of contraband, police after completion of the necessary codal formalities

lodged the FIR, as detailed hereinabove, against them and since then they are behind the bars. Since challan stands filed in the competent court of law

and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of bail.

Mr. Desh Raj Thakur, learned Additional Advocate General, while fairly admitting the factum with regard to filing of the challan in the competent

court of law, contends that though nothing remains to be recovered from bail petitioner, but keeping in view the gravity of offence alleged to have been

committed by him, he does not deserve any leniency. While referring to the status report, learned Additional Advocate General submits that since

petitioner alongwith other co-accused Raman Prashar purchased intermediate quantity of contraband from some unknown person at Kalka, it cannot

be said that he is not indulging in the illegal trade of narcotics. Lastly, learned Additional Advocate General submits that since bail petitioner is drug

addict, there is every likelihood of his being indulged in the activities again in case he is ordered to be enlarged on bail and as such, his prayer for grant

of bail may be rejected outrightly.

Having heard learned counsel for the parties and perused material available on record, this court finds that on 2.6.2021, 12.70 grams of Heroin

came to be recovered from the dash board of the vehicle being driven by the present bail petitioner and as such, it cannot be said that he has been

falsely implicated. However, having taken note of the fact that aforesaid quantity of contraband never came to be recovered in the presence of

independent witnesses coupled with the fact that no case in past stands registered against the present bail petitioner, prayer made on behalf of the

petitioner otherwise deserves to be considered. Though, this Court has no reason to differ with the submissions made on behalf of learned Additional

Advocate General that petitioner has committed offence having adverse impact on the society, but same time Court cannot lose sight of the fact that

the petitioner, if not rehabilitated at first opportunity would get involved more deeper in this activity. Since bail petitioner is drug addict and in past no

case stands registered against him, it would be appropriate in case he is taken to some rehabilitation centre for treatment, so that as soon as possible,

he is brought back to the main stream. Otherwise also, no fruitful purpose would be served by keeping the bail petitioner behind the bars because that

would definitely not help him in getting rid of bad habit, rather it would be in his best interest that he is provided treatment immediately. Otherwise also,

quantity of contraband allegedly recovered from the vehicle being driven by the bail petitioner is intermediate and as such, rigours of section 37 are not

attracted.

Apart from above, this Court finds from the record that at the time of recovery, two persons were sitting in the vehicle, from where intermediate

quantity of contraband came to be recovered. One case already stands already registered against co-accused Raman Prashar and as such, it would be

too premature to conclude complicity, if any, of the petitioner in the case at hand and as such, this Court sees no reason to let him incarcerate in jail for

an indefinite period during trial. Otherwise, guilt, if any, of bail petitioner is yet to be determined in accordance with law and as such, this Court sees no

reason to curtail his freedom for indefinite period during the trial. 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, as has been fairly

stated by learned Senior Advocate representing the petitioner.

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.â€​

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, 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 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. Bail peti-tioner is ordered to be

enlarged on bail, subject to furnishing bail bonds in the sum of Rs.1,00,000/- with one local surety in the like amount, to the satisfaction of the learned

Chief Judicial Magistrate/ learned Judicial Magistrate 1st Class, 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.

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 cancella-tion of the bail.

Any observations made hereinabove shall not be con-strued 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.

Copy Dasti.