Santosh Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner namely Santosh Kumar, who is behind bars since 13.4.2024, has approached this Court in the instant proceedings filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for grant of regular bail in case FIR No. 45/2024 dated 9.4.2024, under Sections 21 and 29 of the NDPS Act, registered with PS Sadar, District Shimla, Himachal Pradesh.

Respondent-State has filed status report and Ms. Ramesh Lata, I/O PS Sadar, Shimla, has come present with record. Record perused and returned.

Close scrutiny of record/status report reveals that on 9.4.2024, at about 11:50pm, police after having noticed unusual behaviour of boy standing near Lal Pani bus stop, stopped him for checking. Since boy after having seen police threw something in the nearby drain and started moving towards ISBT, Tutikandi, police after having apprehended him conducted his search in the presence of the independent witnesses and allegedly, recovered 7.98 grams of heroin/chitta from the bag thrown by him in the nearby drain. Since no plausible explanation ever came to be rendered on record by the boy, whose name subsequently came to be revealed as Veer Singh qua the possession of aforesaid quantity of contraband, police after having completed all necessary codal formalities, lodged FIR detailed herein above and arrested the above named accused, who stands enlarged on bail granted by trial Court. Allegedly, aforesaid person during investigation disclosed to the police that he had been selling chitta/heroin in various parts of Himachal Pradesh on the askance of the person namely Sahil Chaudhary and present bail petitioner Santosh Kumar, police also arrested both the aforesaid persons. Bail petitioner herein, is behind the bars w.e.f. 13.4.2024, whereas co-accused Veer Singh, from whose conscious possession, intermediate quantity of contraband was recovered, stands enlarged on bail pursuant to order passed by the learned Special Judge, NDPS, prayer made by the co-accused Veer Singh, appears to have been accepted by the learned trial court on the premise that intermediate quantity of contraband was recovered from his possession and in past, no case has been registered against him.

Though in the instant case, names of persons namely Sandeep Shah, Sahil Chaudhary and Prehlad Singh also emerged during investigation as they were found to be involved in illegal trafficking of narcotics, but police has been able to arrest bail petitioner as well as Prehlad alongwith main accused Veer Singh, who stands enlarged on bail, whereas co-accused Sahil Chaudhary is absconding.

Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, prayer has been made by the petitioner for grant of regular bail.

Mr. Vijay Kumar Arora, learned Senior Counsel, appearing for the bail petitioner, vehemently argued that petitioner has been falsely implicated because at no point of time, contraband ever came to be recovered from the conscious possession of the bail petitioner, rather bail petitioner herein came to be named in the FIR on the basis of information given by the co-accused Veer Singh, whose statement otherwise could not be made basis to arrest the present bail petitioner. Mr. Arora, further contended that bare perusal of status report nowhere suggests that main accused Veer Singh had any kind of dealing with the bail petitioner rather, as per statement given by the main accused, he was being supplied contraband by person namely Sahil Chaudhary, with whom petitioner herein has no connection. Mr. Arora, further stated that though in past, four cases stand registered under the Act, but since guilt, if any, of him in the afore cases, is yet to be established on record, as such, prayer made by the bail petitioner for grant of bail deserves to be accepted. Lastly, Mr. Arora, submitted that since considerable time is likely to be consumed in conclusion of the trial, prayer made by the bail petitioner for grant of bail deserves to be considered on account of delay in conclusion of trial.

While fairly acknowledging factum with regard to filing of challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General states that though nothing remains to be recovered from the bail petitioner, but he does not deserve any leniency. Mr. Kahol, submitted that though in the case at hand, contraband was not recovered from the conscious possession of the bail petitioner but material collected on record by the investigating agency clearly reveals that bail petitioner is a part of big racket, which had been supplying the drugs in various parts of the Himachal through couriers. While referring to the statement made by the co-accused, from whose conscious possession contraband, came to be recovered, Mr. Kahol, submitted that prior to the incident, which is subject matter of the FIR in question, main accused Veer Singh was supplied drugs by the petitioner herein and as such, it cannot be said that he has been falsely implicated. Mr. Kahol, contended that bail petitioner is accused of heinous crime having adverse impact upon the society, coupled with the fact that in past, four cases under the NDPS Act, stand registered against him and as such, it may not be in the interest of justice to enlarge him on bail because in that event, he may not only flee from justice, but may again indulge in these activities.

Having heard learned counsel for the parties and perused material available on record, this court finds that contraband involved in the case at hand, was not recovered from the conscious possession of the petitioner, but from the conscious possession of the co-accused Veer Singh, who disclosed to the police that he was being used as a carrier by the petitioner as well as other persons namely Sahil Chaudhary and Prehlad. It has also come in the investigation that bail petitioner herein, in connivance of the persons namely Sahil Chauddhary, Prehlad and Sandeep Shah, had been supplying drugs in various parts of the State for so many years. No doubt, in the case at hand, petitioner herein came to be named in the FIR on the basis of statement made by the co-accused, but that cannot be a ground for this Court to accept the prayer made by the petitioner for grant of bail on the ground that there is overwhelming evidence on record suggestive of the fact that petitioner is a drug peddler and in past, four cases under the Act have been registered against him. Very factum of registration of four cases in past clearly indicates that petitioner herein, in the event of his being enlarged on bail, would again indulge in these activities. Though in the case at hand, FIR came to be lodged on the basis of incident of 9.4.2024, when 7.98 grams of chitta/heroin was recovered from the conscious possession of the co-accused Veer Singh, but if the statement given by the co-accused is read in its entirety, it clearly reveals that afore person had been supplying the drugs in different quantities in the various parts of Himachal Pradesh on the askance of the bail petitioner. It has also come in the evidence that co-accused after having sold the drugs deposited the amount in the bank accounts of the present bail petitioner as well as other co-accused Sandeep Shah, Prehlad and Sahil Chaudhary.

No doubt, bail petitioner has been languishing in jail for approximately six months without his being held guilty, but since he despite being enlarged on bail in different cases registered against him in past under NDPS Act, had been repeatedly indulging in illegal activities, there appears to be merit in the contention of learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may again indulge in such like activities.

Though at this stage, Mr. Arora, learned Senior Counsel for the petitioner attempted to argue that disclosure statement made by the co-accused is inadmissible, but this Court having taken note of the peculiar facts and circumstances as have been noticed herein above, is not inclined to accept the aforesaid submission because acceptance of such submission may not be in the larger public interest, rather enlargement of the petitioner on bail, at this juncture, that too, on the afore plea raised by petitioner, would seriously prejudice the interest of the public at large. This Court cannot lose sight of the fact that this drug menace has caused irreparable damage to the society at large. Day in and day out, number of FIRs are being lodged under the Act and perusal thereof clearly reveals that minor and innocent children are being victimized by a handful of greedy persons.

This Court also cannot lose sight of the fact that in recent past, police has been able to nab some of the big suppliers and in case, they are enlarged on bail on technical grounds as have been put forth by the learned Senior counsel for the petitioner, very effort of the police would go in vain.

Similarly, this court finds no force in the submission of learned Senior Counsel appearing for the petitioner that prayer made by the bail petitioner deserves to be considered on the ground of inordinate delay in conclusion of trial. In the case at hand, bail petitioner is behind the bars for last six months, but it is also admitted fact that challan stands filed in the competent court of law. As per status report, court below after having framed charge has already fixed date for production of prosecution witnesses. Since examination of prosecution witnesses is yet to commence and the bail petitioner is not behind the bars for long period, it may not be fair on his part to claim that trial is being unnecessarily delayed or on account of pendency of the trial, his freedom is being curtailed for an indefinite period.

While placing reliance upon judgment passed by the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 and Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, learned Senior Counsel appearing for the petitioner vehemently argued 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. He further argued that very object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. He submitted that since there is nothing on record to suggest that in the event of petitioner’s being enlarged on bail, he would not make himself present for trial, mere registration of case under the NDPS Act, alleged to have adverse impact on the society, cannot be a aground to deny the bail, especially when bail petitioner has suffered for more than six months and nothing remains to be recovered from him.

True, it is that in the aforesaid judgments pressed into service by the learned Senior Counsel appearing for the petitioner, it has been held that freedom of an individual cannot be curtailed for indefinite period and a person is believed to be innocent until found guilty, but it is also well settled that while deciding the petition for bail various factors i.e. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced are also required to be taken into consideration. See. Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496.

By now it is also well settled that normal rule is of bail and not jail, but certainly, while considering prayer for grant of bail, court is required to keep in mind the nature of accusations, nature of evidence, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. See. Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218.

In the case at hand, admittedly, contraband never came to be recovered from the conscious possession of the bail petitioner as has been taken note herein above, but there is overwhelming evidence adduced on record suggestive of the fact that petitioner alongwith other co-accused had been supplying narcotics in different quantities in the state of Himachal Pradesh through couriers. Co-accused Veer Singh, who was apprehended with intermediate quantity of contraband revealed to the police that in past also, he had been supplying drugs to various persons in the State of Himachal Pradesh on the askance of the bail petitioner as well as other persons. Though it came to be vehemently argued by the learned Senior counsel appearing for the petitioner that name of the petitioner could not have been incorporated in the FIR merely on the basis of statement of co-accused, but this Court, having taken note of the seriousness of the disclosure made by the co-accused with regard to involvement of the present bail petitioner as well as financial transactions coupled with the new modus-operendi of drug suppliers using couriers for sending the drugs, is not inclined to accept the aforesaid submissions. No doubt, gravity alone cannot be a decisive ground to deny bail as has been held by the Hon’ble Apex Court in the judgments referred herein above, but factor especially, apprehension of repetition of offence is required to be taken into consideration. As has been noticed herein above, in past, four cases stand registered under the Act, wherein though petitioner stands enlarged on bail, but yet he has failed to mend his ways and continued to indulge in these activities. Indulgence of bail petitioner in illegal activities after his being enlarged on bail clearly reflects the criminal bent of mind of the bail petitioner, who appears to have no regret for what he has done in the past and as such, otherwise his enlargement on bail during trial may not be in the interest of society at large, especially when he in connivance with other co-accused had been supplying the drugs through couriers.

No doubt, speedy trial has been held to be right guaranteed to the accused and violation thereof, if any, amounts to violation of the fundamental right, especially Article 21 of the Constitution of India as has been held by the Hon’ble Apex Court in Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, and further reiterated by the Hon’ble Apex Court in its recent judgment in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, Criminal Appeal No.2787 of 2024, decided on 03.07.2024. However, in the instant case, no inordinate delay in conclusion of trial can be said to have been caused because bail petitioner is behind bars for more than six months and charge already stands framed against him. Since trial court has already fixed the date for recording the statement of prosecution witnesses, it would be too premature to conclude that trial shall not be concluded within the reasonable time. Had court not framed charge till date and no steps were taken to summon the prosecution witnesses, this Court would have agreed with the submissions made by the learned Senior Counsel for the petitioner that considerable time is likely to be consumed in conclusion of the trial.

Moreover, judgment pressed into service by the learned Senior Counsel to claim bail on the ground of inordinate delay, especially in case titled Javed Gulam Nabi Shaikh (supra) do not apply in the facts and circumstances of the present case. In the afore case, case under Unlawful Activities (Prevention) Act, 1967 was registered against the petitioner, but even after lapse of four and half years, there was no hope of culmination of trial and as such, Hon’ble Apex Court having taken note of the long incarceration of four years of the bail petitioner ordered to enlarge him on bail. However, in the case at hand, petitioner is behind bars for six months and date has been already fixed for recording the statements of prosecution witnesses.

Consequently, in view of the detailed discussion made herein above, present bail petition is dismissed.

Before parting, this Court wishes to observe that having taken note of the fact that bail petitioner is behind bars for more than six months, coupled with the fact that date for statements of prosecution witnesses stands fixed, this Court hopes and trusts that all out efforts shall be made by the learned trial court to conclude the trial. Needless to say, this Court on judicial as well as administrative sides, has been repeatedly advising the courts below to conclude the trial of under trials on top most priority so that their freedom is not curtailed for an indefinite period.