Shammi Sood vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present bail petition filed under Section 439 Cr.PC, prayer has been made on behalf of the bail petitioner namely Shammi Sood, for grant of regular bail in FIR No. 11/2019 dated 17.1.2019, under Sections 20, 25 and 29 of the ND&PS Act and 187 MV Act, registered at Police Station Jogindernagar, District Mandi, Himachal Pradesh. Respondent State has filed the Status report in terms of order dated 9.3.2021. H.C. Vijainder, PS. Jogindernagar, is also present with records. Records perused and returned.

Record/status report reveals that on 17.1.2019, police party present at nakka laid near Ghatasani, intercepted motorcycle bearing registration No.HP-83-5643 being driven by person namely Rajeev Hussain alias Jibu, who allegedly at the time of checking fled away from the spot, whereas pillion rider namely, Karan Sood was stopped for checking by the police. Since above named person Karan Sood got perplexed after having seen the police, police in the presence of independent witnesses effected personal search of accused namely Karan Sood as well as rucksack being carried by him and allegedly recovered 1 Kg. 121 grams of charas from his rucksack. Since, no plausible explanation came to be rendered on record with regard to possession of aforesaid quantity of contraband, police after completion of necessary codal formalities, lodged an FIR, detailed hereinabove.

During investigation, above named accused Karan Sood allegedly disclosed to the police that he alongwith co-accused Rajeev Husain alias Jibu had come on the motorcycle of present bail petitioner namely Shami Sood. Above named accused further disclosed to the police that present bail petitioner, Shami Sood had also come alongwith him in a taxi and had purchased commercial quantity of charas from person near Jhatingri. Co-accused Karan Sood disclosed to the police that co-accused Rajeev Husain had checked the charas, whereafter bail petitioner purchased the same and gave it to him. Pursuant to aforesaid disclosure made by co-accused Karan Sood, present bail petitioner as well as co-accused Rajeev Hussain came to be named in the FIR detailed hereinabove and since 31.1.2019, present bail petitioner is behind the bars, whereas main accused Karan Sood, from whose conscious possession commercial quantity of contraband came to be recovered, already stands enlarged on bail pursuant to the order passed by learned Special Judge, Kangra at Dharamshala. Another co -accused Rajeev Husain alias Jibu also stands enlarged on bail in terms of judgment dated 7.1.2021, passed by this Court in Cr.MP(M) No. 2287 of 2020. Since challan stands filed in the competent court of law and nothing remains to recovered from the bail petitioner coupled with the fact that two accused stand enlarged on bail, petitioner has approached this Court in the instant proceedings under the changed circumstances.

Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly acknowledging the factum with regard to filing of the 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 offense alleged to have been committed by him, he does not deserve any leniency and as such, his application for grant of bail deserves outright rejection. Mr. Bhatnagar, further contends that though two accused namely Rajeev Husain and Karan Sood, stand already enlarged on bail, but that cannot be made ground/basis to release the petitioner on bail, especially, when there is overwhelming evidence collected on record suggestive of the fact that it is the present bail petitioner, who had actually purchased the contraband by paying huge amount. He further contends that Karan Sood from whose possession, commercial quantity of the contraband was recovered has categorically deposed to the police that present bail petitioner had paid the money for buying the charas and as such, in the event of petitioner's being enlarged on bail, he may not only flee from justice, rather may again indulge in such like activities again.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of the alleged incident commercial quantity of contraband was recovered from the conscious possession of the co-accused Karan Sood, who already stands enlarged on bail. In the case at hand, present bail petitioner has been named in the case on the basis of statement made by co-accused Karan Sood, from whose conscious possession, commercial quantity of contraband was recovered and as such, it would be too premature to conclude complicity of the bail petitioner in the alleged incident, rather same is required to be proved by leading cogent and convincing evidence on record. In the case at hand, police has claimed that entire amount for purchasing commercial quantity of contraband was given by the present bail petitioner, but this Court does not find any concrete evidence available on record suggestive of the fact that money used for purchase of commercial quantity of Charas traveled from the bank account of the present bail petitioner. It is not in dispute that commercial quantity of charas was recovered at Naka from rucksack carried by the main accused Karan Sood.

Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence collected on record by the Investigating Agency, but having taken note of aforesaid aspect of the matter, this Court sees no reason to let bail petitioner incarcerate in jail for indefinite period, especially when other co-accused stand already enlarged on bail. No doubt, in the case at hand, commercial quantity of contraband came to be recovered from the conscious possession of the accused and as such, rigours of Section 37 of the Act are attracted, but careful perusal of Section 37 of the Act nowhere suggests that there is a complete bar for the court to grant bail in those cases, where conscious possession of contraband is involved. In such cases, court after having afforded an opportunity to public prosecutor can always proceed to grant bail in case it has reason to believe that applicant is not involved in the case and in the event of his being enlarged on bail, he would not indulge in such like crime again.

It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Since guilt, if any, of the bail petitioner is yet to be proved, in accordance with law, his prayer for grant of bail deserves consideration. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent conditions. Though in the case at hand, status report reveals that number of cases stand registered against the bail petitioner, but there is no mention, if any, of case under NDPS Act. It has been repeatedly held by the Hon'ble Apex Court in various pronouncements that pendency of criminal cases, if any cannot be reason /basis to deny the bail to the petitioner in subsequent cases. No material worth credence has been placed on record by the Investigating Agency suggestive of the fact that in the event of petitioner's being enlarged on bail, he may again indulge in the illegal trade of Narcotics.

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."

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."

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.

Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-

"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

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 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.

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. 2,00,000/- with two local sureties 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.

(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.

Copy dasti.