Subhash Chand @APPELLANT@Hash State of Himachal Pradesh

Sandeep Sharma

1.Bail petitioner namely, Subhash Chand, who is behind the bars since 30.1.2018, 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. 33 of 2018, dated 30.01.2018, under Sections

21Â61 85 of the Narcotics Drugs & Psychotropic Substances Act ( for short “ND&PS Actâ€) and Section 18ÂA of the Drugs & Cosmetic

Act, registered at police Station, Nalagarh, District Solan, H.P.

Sequel to order dated 23.10.2018, ASI Yog Raj, Police Station, Nalagarh and Mr Deepak Shandil, Assistant Superintendent Jail, Solan H.P., have

come present alongwith record. Mr. Sanjeev Sood, learned Additional Advocate General, has also placed on record status report prepared on the basis

of the investigation carried out by the Investigating Agency. Record perused and returned.

Careful perusal of the record/status report reveals that on 30.01.2018, police party on the basis of prior information, raided the Verma Medical

Store owned by the bail petitioner Subhash Chand son of Sh. Yog Raj, R/o village Dattowal, Post Office & Tehsil Nalagarh, District Solan, H.P.

During search, police recovered prohibited drugs/psychotropic substance. Since bail petitioner and coÂaccused Manisha Verma, who happened to be

daughterÂinÂlaw of present bail petitioner, failed to produce any valid permit/licence, if any, to possess prohibited drugs/ psychotropic substance

allegedly recovered from the aforesaid shop, they were taken into custody and FIR, detailed hereinabove, came to be registered against them.

Subsequently, coÂaccused namely, Manisha Verma came to be enlarged on bail vide order dated 13.4.2018, passed by this Court in Cr.MP(M)

No.388 of 2018, whereas bail petition(Cr.MP(M) No.582 of 2018) having been filed by the present bail petitioner was dismissed as withdrawn

reserving liberty to the bail petitioner to file afresh at appropriate stage, in accordance with law, if so required and desired.

Present bail petition has been filed mainly on the medical grounds. On 23.10.2018, learned counsel representing the petitioner, while inviting

attention of this Court to the medical record attached with the petition, strenuously argued that medical condition of the bail petitioner is not healthy and

it would not be safe to keep him behind the bars for indefinite period. This Court having perused the material available on record, called for the report

of Jail Superintendent, concerned regarding medical condition of the bail petitioner.

Today, during the proceedings of the case, Mr. Sanjeev Sood, learned Additional Advocate General placed on record affidavit of Shri Rajnesh

Kumar, Superintendent, District JailÂcumÂAssistant Commissioner to Deputy Commissioner, Solan, which is taken on record. Perusal of aforesaid

affidavit, suggests that bail petitioner is/was under treatment for Heart Disease and Diabetes at the time of his admission at District Jail,Solan,

whereafter he was taken to Regional Hospital, Solan on 20.2.2018 from where he was referred by the concerned Doctor to P.G.I.,Chandigarh. On

2.3.2018, bail petitioner was taken to PGI Chandigarh, where he remained admitted till 4.3.2018. The discharge slip and follow up card is Annexure

PÂ3. Record also reveals that bail petitioner remained admitted at Regional Hospital, Solan on 6.4.2018 from where he was referred to IGMC, Shimla

for Cardiology consultation and where he remained admitted w.e.f. 6.4.2018 to 12.4.2018. During this period, he was operated upon and discharged on

12.4.2018. Discharge slip of Regional Hospital, Solan and discharge/ follow up card of IGMC, Shimla are placed with the affidavit having been filed by

the Jail Superintendent, Solan as Annexures RÂ4 & RÂ5. Affidavit of Jail Superintendent, clearly suggests that bail petitioner is frequently taken to

IGMC, Shimla for follow up and lastly he was sent for follow up and to obtain health status report on 5.11.2018, 9.11.2018 and 12.11.2018. Jail

Superintendent has also placed on record copy of status report issued by Assistant Professor Department of Cardiology Indira Gandhi Medical

College (IGMC), Shimla as Annexure RÂ6, perusal whereof, suggests that bail petitioner is suffering from heart disease, but presently he is having

uncontrolled blood sugar, for which he needs continuous medication and injections. Dr. has categorically advised that for control of blood sugar, he

needs follow up in Department of medicine. Though, Dr. has stated that presently patient is able to climb stairs of three stories and there is no

functional limitation of activity, but blood investigation of patient done on 12.11.2018 reveals uncontrolled blood sugar. Otherwise also, Mr. Deepak

Shandil, Assistant Superintendent Jail, Solan, who is present in Court, states that keeping in view the health condition of the bail petitioner, he is

required to be taken to hospital frequently because there is no adequate facility available in jail as far as infrastructure required for present bail

petitioner, is concerned.

6 Mr. Ashok Saini, Advocate, duly assisted by Mr. Divya Raj Singh, Advocate, representing the petitioner, contended that keeping in view the medical

condition of bail petitioner, it is not safe to keep him in jail, rather he deserves to be enlarged on bail, so that he is provided good medical facility by his

family members. While referring to the medical report placed on record by Jail Superintendent, Solan, learned counsel representing the bail petitioner

made serious attempt to persuade this Court to agree with his contention that bail petitioner is totally confined to bed and no fruitful purpose would be

served in case bail petitioner is allowed to incarcerate in jail for indefinite period during the pendency of the trial, especially when his health is not

good. Mr. Saini further contended that challan stands filed in the competent court of law and nothing is required to be recovered from the bail

petitioner and as such, there is no impediment, if any, in accepting the prayer having been made by the bail petitioner for grant of bail. Mr. Saini,

further contended that keeping in view the physical condition of bail petitioner, there is no likelihood of his fleeing from justice and he can be enlarged

on bail by putting him to stringent conditions.

Mr. Sanjeev Sood, learned Additional Advocate General, while fairly acknowledging the factum with regard to serious illness of bail petitioner,

contended that as per the affidavit filed by the Jail Superintendent, Solan, bail petitioner is required to be taken to IGMC frequently for follow up. He

further contended that there is no adequate facility available in jail at Solan to meet the emergent situation, if any, arises in the case of the bail

petitioner, who admittedly is suffering from heart disease as well as blood sugar. Mr. Sood, learned Additional Advocate General further contended

that though huge contraband came to be recovered from the shop of bail petitioner and he is found to be involved in heinous/serious crime, but keeping

in view his present health condition, prayer having been made by the bail petitioner for grant of bail may be considered subject to putting him to

stringent conditions.

Having heard learned counsel for the parties and perused the material available on record, especially medical record made available to this Court

during the proceeding of the case, this Court finds that bail petitioner, who is behind the bars since 30.1.2018 is not fit to be kept in jail for indefinite

period, it is quite apparent from the opinion rendered by the Department of Cardiology IGMC, Shimla that bail petitioner is suffering from heart disease

and his blood sugar is uncontrolled and he is required to visit medicine department frequently. Otherwise also, record reveals that for the last few

months bail petitioner remained admitted in the hospital and during this period he was also operated and as such, it is not safe to keep the bail petitioner

in jail, where admittedly no adequate facilities are available to meet the emergent situation, as has been fairly admitted by the Jail Superintend, Solan.

Though, as is evident from the material available on record that jail authorities are trying its best to provide best medical help to the bail petitioner, but,

there is no permanent medical help available at Jail and as such, it would be in the interest of bail petitioner to enlarge him on bail, so that he is taken

care of by his family members.

There is no doubt that offence alleged to have been committed by the bail petitioner is heinous and rigour of Section 37 of ND& PS Act, are

attracted in the present case but in the given facts and circumstances of the case, it would be inhumane to keep the bail petitioner behind the bars,

especially, till the time, he fully recovers from the disease/ailment allegedly suffered by him. No doubt, petitioner is alleged to have been involved in

serious crime, but guilt, if any, of him is yet to be proved, in accordance with law. Taking note of the health condition of the bail petitioner, this Court

has reasons to presume that there is no likelihood of petitioner’s indulging in illegal trade of narcotics during the pendency of the trial, which is one

of the factor to be borne in mind, while considering the prayer for grant of bail during the pendency of the trial.

Hon’ble Apex Court in case titled Dipak Shubhashchandra Mehta versus Central Bureau of Investigation and another; (2012) 4 Supreme

Court Cases 134, while considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail

Dispensary, granted bail pending trial on stringent conditions. In the case before the Hon’ble Apex Court, appellant while in custody had

contracted/obstructive jaundice requiring long intensive treatment. As a result of such obstructive jaundice, the appellant was unable to undergo other

required surgeries. It would be profitable to reproduce para Nos. 34 and 35 of the judgment herein: “ 34. As posed in Sanjay Chandra Vs.CBI,

(2012)1 SCC 40, we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above.

As observed earlier, we are conscious of the fact that the present appellant alongwith others is charged with economic offences of huge

magnitude. At the same time, we cannot lose sight of the fact that though the investigating agency has completed the investigation and submitted the

charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed, therefore, the presence of the

appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the

documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail

pending trial on stringent conditions in order to safeguard the interest of CBI.â€​

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 cannot be curtailed for indefinite period, especially when his guilt has not been 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:Â 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.

By now it is well settled that gravity alone cannot be 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. The Hon’ble Apex Court in Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; wherein it has been 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.â€​

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 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.

Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing bail bonds

in the sum of Rs. 5,00,000 ( Rs. Five lakh) with one local surety in the like amount, to the satisfaction of learned trial Court, besides 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 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 surrender passport, if any, held by him. 16. 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 his bail. 17. 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 the petition alone. The bail petition stands disposed of accordingly. Copy dasti.