Surjeet Singh 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 Surjeet Singh, who is behind bars since 26.12.2018, for grant of regular bail in connection with FIR No. 327/18 dated 26.12.2018 under Sections 21-61-85 of ND&PS Act (in short "the Act") registered at P.S. Nalagarh, District Solan, H.P.

Perusal of status report having been filed by the respondent-State pursuant to previous order passed by this Court reveals that on 26.12.2018, police party present at Dhabota barrier apprehended a car bearing registration No. PB-08A-5648, being driven by the present bail petitioner and allegedly, recovered huge quantity of psychotropic drugs i.e. 40 strips of Tramastar-Plus, 16 strips of Martin-sr, 210 strips of Rimdol-50 and 140 Strips of Nitzolam 0.50 tablets in the presence of independent witnesses. Since petitioner was unable to render proper explanation qua possessing the aforesaid huge quantity of psychotropic drugs, police after completion of necessary codal formalities, registered FIR detailed herein above against the petitioner on 26.12.2018 and since then, he is behind Bars.

Mr. Arvind Sharma, learned Additional Advocate General, while fairly admitting factum with regard to pendency of challan before the trial court contends that since statements of material prosecution are yet to be recorded, it may not be in the interest of justice to enlarge the petitioner on bail at this juncture, who in the event of his being enlarged on bail may not only flee from justice, rather can make an attempt to dissuade the prosecution witnesses from deposing against him. Mr. Sharma, further contends that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, his prayer for grant for bail may be rejected outrightly.

Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of the alleged incident, police party present at Dabhota barrier recovered strips of medicines containing psychotropic substance from the Car being driven by the petitioner in the presence of the independent witnesses and as such, there is no force in the argument of learned counsel for the petitioner that petitioner has been falsely implicated. Though material available on record reveals that at the time of confiscation of aforesaid contraband, petitioner claimed before the police that he is a registered medical practitioner, but since he failed to place on record licence, if any, case under the NDPS Act, came to be registered against him. Though this Court is fully in agreement with learned Additional Advocate General that the petitioner has indulged in serious crime having adverse impact on society, but this Court cannot loose sight of the fact that the bail petitioner, who is 60 years old, is behind bars for almost 1 ½ years and till date, only two prosecution witnesses have been examined. As per own case of the prosecution, more than fifteen prosecution witnesses are yet to be examined. Leaving it aside, this Court having carefully perused statements made by the so called independent witnesses associated by the Investigating Agency at the time of recovery (annexed with the petition) finds that they have not supported the case of prosecution. Though learned Additional Advocate General argued that apart from the aforesaid two prosecution witnesses (PW1 and PW2), many other material prosecution witnesses remain to be examined, but status report filed on the basis of investigation carried out by the Investigating Agency itself reveals that police party while apprehending petitioner with contraband only associated the above named two independent witnesses (PW1 and PW2), meaning thereby all the remaining witnesses are official witnesses. Though case is being listed before the court below after frequent intervals but on account of COVID-19, statements of remaining witnesses are not being recorded. Having taken note of the prevailing condition in the country on account of pandemic, this Court is of the view that trial of the petitioner would be delayed further and as such, this Court sees no reason to curtail the freedom of the petitioner for an indefinite period during trial, especially when statements of two so called independent witnesses associated by the Investigating Agency stand recorded. Leaving everything aside, status report reveals that in total, 205.982 grams of psychotropic substance has been found in the recovered drugs and as such, learned counsel for the petitioner is right in contending that contraband, if any, allegedly recovered from the possession of the petition is of "intermediate quantity" and as such, rigors of Section 37 are not attracted in the present case.

Though learned Additional Advocate General vehemently argued that the petitioner had been indulging in the illegal trade of drugs, but there is nothing to suggest that in past also, petitioner had been indulging in such like activities and there is any case registered against him under the Act. Apprehension expressed by learned Additional Advocate General with regard to petitioner's fleeing from justice in the event of his being enlarged on bail, can be best met by putting him to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioner.

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 1 ½ years. 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."

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.

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. 5,00,000/- 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.