Sonu vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of above captioned bail petitions, prayer has been made on behalf of the bail petitioners namely, Sonu and Chintu, who are behind the bars since 25.1.2020 and 30.1.2020 respectively, for grant of regular bail in case FIR No.96/2019, dated 16.12.2019, registered at police Station, New Shimla, District Shimla, Himachal PrDESH under Sections 22 & 29 of the Narcotic Drugs & Psychotropic Substances Act,1985 ( For short ' Act') and Section 18­C of Drugs and Cosmetics Act.

In compliance to order dated 15.5.2020 respondent­State has filed the status report, perusal whereof reveals that on 16.12.2019 person namely Aman Gupta came to be apprehended with contraband by the police party present near Phase­III, bifurcation, BCS, New Shimla. Since the person named hereinabove got perplexed on seeing the police party party, police thought it proper to make his personal search in presence of two independent persons. In the aforesaid search, police allegedly recovered 10 strips of tablet namely Nitrosun­10. Since no plausible explanation came to be rendered on record by Aman Gupta for possessing and carrying the above named drug, police after completion of necessary codal formalities, lodged a FIR, detailed herein above, against the petitioner under Section 22 and 29 of the Act and Section 18­C of Drugs and Cosmetics Act.

Status report made available to this Court further reveals that during investigation Aman Gupta disclosed to the police that he purchased prohibited drug named hereinabove by making call on mobile number 98678­91720, mentioned on website i.e. www. sexmeds. He also disclosed to the police that he had received aforesaid drug Via DTDC courier. During the investigation police found that DTDC express courier was dispatched from Preet Vihar, Delhi. On 25.1.2020, police apprehended bail petitioner Chintu, who had come to DTDC office, Preet Vihar, for sending two more parcels. Police allegedly recovered 13 strips of Nitrosun­10 tablets from bail petitioner Chintu, who during investigation further disclosed that he was asked to send courier from DTDC Express, Preet Vihar, by another bail petitioner Sonu, resident of Sidharth Nagar, Uttar Pradesh. On 30.1.2020, bail petitioner Sonu made himself available at police Station, Anand Vihar, Delhi and disclosed to the police that he used to receive orders on "Whatsapp" with regard to purchase and sale of medicines from different customers. Police after having checked laptop and mobile phone of the bail petitioner Sonu, found that he had been purchasing prohibited drugs from Meor Pharma, Hargobind Enclave, near Anand Vihar, Delhi. As per the investigation, bail petitioner Chintu used to purchase medicines from the above named shop on the askance of bail petitioner Sonu, who further used to give Rs.50/­ to Chintu for each parcel. On 1.2.2020, police took bail petitioner Chintu to Meor Pharma, Hargobind Enclave, near Anand Vihar, where he disclosed that he used to purchase the medicines from co­accused Chander Joshi, who otherwise stands enlarged on bail. Co­accused Chander Joshi disclosed to the police that he used to sell medicines to the bail petitioners in the absence of owner of the shop, Shri Harbinder Singh Sethi. He also disclosed that he used to give 20% discount to the bail petitioners on the sale of drug namely Nitrosun­10. In the aforesaid background, present bail petitioners came to be arrested on2 5.1.2020 and 30.1.2020 respectively, in the aforesaid FIR and since then they are behind the bars.

FSL report submitted by the State Forensic Science Laboratory, Junga though reveals that total weight of Nitrosun­10 tablets (230 tablets) recovered from the conscious possession of Aman Gupta and bail petitioner Chintu was found to be 128.40 grams, but FSL Junga, has specifically opined that each tablet of Nitrosun contains 10.0 mg of prohibited drug i.e. Nitrazepam.

Learned counsel representing the bail petitioner contends that since investigation in the case is complete and nothing remains to be recovered from the bail petitioners, no fruitful purpose would be served by keeping the bail petitioners behind the bars, who have otherwise already suffered more then four months.

Learned counsel representing the bail petitioners further submits that though recovery, if any, of prohibited drugs from the conscious possession of the bail petitioners is yet to be proved in accordance with law by the investigating agency by leading cogent and convincing evidence, but even otherwise quantity of prohibited drug allegedly recovered from the bail petitioners is of "small quantity" and as such, provisions of Section 37 of the Act are not attracted. Learned counsel representing the bail petitioners further contends that one of the co­accused, from whose conscious possession 10 strips of Nitrosun­10 tablets was recovered, stands already enlarged on bail. He also submits that another co­accused Chander Johsi, who has allegedly sold the prohibited drug to bail petitioner Chintu, also stands enlarged on bail. Lastly, learned counsel representing the bail petitioners contends that mere statement of co­accused may not be sufficient to conclude the guilt, if any of the bail petitioner, especially when no invoice/bill has been adduced on record to ascertain the complicity, if any, of the bail petitioner in the alleged offence.

Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to completion of the investigation, contends that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of the offence alleged to have been committed by them, they do not deserve any leniency. While making this Court to peruse the complete record, learned Additional Advocate General made serious attempt to persuade this Court to agree with his contention that the bail petitioners are a part of a drug cartel, which is playing with lives of so many innocent persons. Learned Additional Advocate General further contends that it stands duly established on record that bail petitioner Sonu used to receive orders on "Whatsapp" for sending prohibited drug and to facilitate the delivery he had engaged services of another bail petitioner Chintu for supplying the same to the respective customers through courier. While referring to the statement of bail petitioner Chintu that he had purchased Nitrosun­10 tablets from co­accused Chander Joshi, learned Additional Advocate General contends that complicity of present bail petitioner in the commission of offence punishable under Narcotic Drugs and Psychotropic Substances Act and Drugs and Cosmetics Act, stands duly proved on record and as such, their prayer for grant of bail, deserves to be rejected outrightly. Learned Additional Advocate General further submits that though quantity of prohibited drug alleged to have been recovered from the possession of bail petitioner and co­accused Aman Gupta is of "Small quantity", but that cannot be a ground to enlarge the bail petitioner on bail, especially when both the bail petitioners hails from the State of U.P. Learned Additional Advocate General further submits that in the event of petitioners being enlarged on bail, there is every likelihood of their fleeing from justice and as such, their prayer for grant of bail may be rejected outrightly.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that co­accused namely Aman Gupta and Chander Joshi already stand enlarged on bail. Co­accused Aman Gupta, who initially came to be apprehended on 16.12.2019 with ten strips of Nitrosun­10 tablets was ordered to be enlarged on bail by learned Additional Sessions Judge­I, Shimla. It is also not in dispute that in 13 strips of Nitrosun­10 tablets, which contained prohibited drugs namely Nitrazepam, were recovered from the conscious possession of bail petitioner Chintu while he had come to Preet Vihar for dispatching the courier. Record reveals that bail petitioner Sonu used to take orders of medicines on "Whatsapp" and then supply the same to the respective customers through courier but at this stage this court is unable to lay its hand to the material, if any, collected on record with regard to orders, if any, made by the so called customers on "Whatsapp" of bail petitioner Sonu. Though, material available on record reveals that 23 strips of Nitrosun­10 tablets allegedly recovered in the case at hand were sold by co­accused Chander Joshi, who at that relevant time was serving as a salesman in Meor Pharma, Delhi but such fact is yet to be established on record by the Investigating Agency by way of cogent and convincing evidence. Mere statement of co­accused, if any, made to the police that he used to sell prohibited drugs to the bail petitioners in the absence of owner of the shop may not be sufficient at this stage to conclude complicity, if any, of the present bail petitioners.

Leaving everything aside, report of FSL Junga made available to this Court clearly suggests that there is 2.3 grams (2300 mg) of Nitrazepam i.e. prohibited drug in 230 tablets allegedly recovered form the conscious possession of bail petitioner Chintu and co­accused Aman Gupta. FSL Report further reveals that though 230 tablets were sent to it for chemical examination but each tablet contained 10.0 mg of the prohibited drug i.e. Nitrazepam. If the aforesaid conclusion drawn by the State Forensic Science Laboratory Junga is taken into consideration, total quantity of Nitrazepam in 230 tablets comes to 2300mg or 2.3 grams. Commercial quantity of the prohibited drug as prescribed under the Act is 500 grams and as such, rigours of S.37 of the Act are not attracted in the present case. True, it is that offence alleged to have been committed by the present bail petitioner alongwith other co­accused is of serious nature, but since complicity, if any of present bail petitioners is yet to be established on record coupled with the fact that two other co­accused stand enlarged on bail, there appears to be no justification to curtail the freedom of the present bail petitioner for indefinite period during the trial, especially when they have already suffered more then four months. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioners being enlarged on bail, they may flee from justice or may again indulge in such activities, can be best met by putting bail petitioner to stringent conditions.

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:

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 first­time 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 Re­Inhuman Conditions in 1382 Prisons

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."

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 Apex Court in Prasanta Kumar Sarkar versus 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.

In view of above, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bonds in the sum of Rs.2.00 Lakh with one surety in the like amount each to the satisfaction of the learned trial Court/ Magistrate available at the station with following conditions:

(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) They 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) They shall not leave the territory of India without the prior permission of the Court.

(e) They shall surrender passport, if any, held by them

It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, 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 these application alone.

The petition stands accordingly disposed of. Copy dasti.