Sunny vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present petition filed under Section 439 of Cr.PC, prayer has been made on behalf of the bail petitioner namely Sunny, who is behind

bars since 25.10.2019, for grant of regular bail in connection with FIR No. 137/19, dated 25.10.2019 under Sections 21-61-85 of ND&PS Act (in short

“the Actâ€​) registered at P.S. Damtal, District Kangra, H.P.

Perusal of status report having been filed by the respondent-State pursuant to previous order passed by this Court reveals that on 25.10.2019, police

present at Toll Tax Barrier, Bhadroya, apprehended a Scooty bearing registration No. PB-35T-4843, being driven by a person namely Sarwan (co-

accused), along with pillion rider i.e. bail petitioner and allegedly, recovered 6.60 grams of Heroin from the dickey of the Scooty in question. Since no

plausible explanation came to be rendered on record on behalf of the occupants of the scooty, police after completion of codal formalities, lodged

aforesaid FIR against the bail petitioner as well as co-accused on 25.10.2019 and since then, bail petitioner is behind Bars.

Mr. Kunal Thakur, learned Deputy Advocate General, while fairly admitting factum with regard to filing of challan before the trial court contends

that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him,

he does not deserve any leniency and as such, his prayer for grant for bail may be rejected outrightly. Mr. Kunal, further contends that having taken

note of the antecedents of the bail petitioner, it would not be in the interest of justice to enlarge him on bail because in the event of his being enlarged

on bail, there is every likelihood of his indulging in such like activities again.

Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of the alleged incident, 6.60

grams of Heroin came to be recovered from the dickey of scooty in question being driven by the co-accused Sarwan, who already stands enlarged on

bail. It appears from the record made available to this Court that earlier bail petitions having been filed by the petitioner came to be rejected by the

court below solely on the ground that 2-3 cases under the Act are already pending adjudication against him. No doubt that aforesaid quantity of Heroin

came to be recovered from the Scooty being driven by the co-accused on the date of alleged incident in the presence of independent witnesses

associated by the police present at Toll Tax Barrier Bhadroya, but it is not in dispute inter-se parties that present bail petitioner was a pillion rider,

coupled with the fact that Scooty in question is owned by some third person, who has otherwise not been named in the FIR. Since this is the specific

case of the Investigating Agency that 6.60 grams of Heroin came to be recovered from the dickey of Scooty in question, which was admittedly being

driven by the co - accused Sarwan, it would be too early to conclude the complicity, if any, of the present bail petitioner in the commission of alleged

offence under Section 21 of the NDPS Act. Had police recovered aforesaid quantity of contraband from the conscious possession of the bail

petitioner, things would have been different, but in the given facts and circumstances of the case, guilt, if any, of the bail petitioner is yet to be

established on record by the Investigating Agency.

Leaving everything aside, quantity of contraband allegedly recovered from the Scooty in question is intermediate and as such, rigors of Section 37 of

the Act are not attracted in the present case. No doubt, record/status report reveals that two cases under the NDPS Act already stand registered

against the present bail petitioner, but guilt, if any, of him in those cases, is yet to be proved in accordance with law and as such, mere pendency of

such cases, may not be a reason for this Court to reject the present bail petition, especially, when no material wroth credence has been placed on

record by the Investigating Agency suggestive of the fact that bail petitioner had been indulging in the illegal trade of narcotics in past also. Bail

petitioner is behind bars for the last nine months and till date, charges have not been framed. Moreover, trial of the accused is likely to be further

delayed on account of COVID-19 and as such, this Court cannot let the bail petitioner incarcerate in jail for an indefinite period during trial.

Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record

by the Investigating Agency, but having noticed aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate

in jail for an indefinite period, especially when he has already suffered for more than 9 months coupled with the fact that co-accused stands enlarged

on bail. Leaving everything aside, guilt, if any, of the bail petitioner is yet to be established on record by the Investigating Agency by leading cogent

and convincing evidence and as such, his freedom cannot be curtailed for an indefinite period during trial. Hon’ble Apex Court as well as this

Court in catena of cases have repeatedly observed/held that one is deemed to be innocent till the time his/her guilt is not proved in accordance with

law.

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 has 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.

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.â€​

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.â€​

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.

In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, bail 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/- each with one local surety 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.

Dasti on usual terms.