Himachal Pradesh High Court

Chhabile Ram vs State Of Himachal Pradesh on 24 February, 2021

Bench: Sandeep Sharma

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                               Cr. MP (M) No. 1913 of 2020
                                             Decided on February 24, 2021




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     Chhabile Ram                                                   ...Petitioner
                                       Versus

     State of Himachal Pradesh                                   ...Respondent





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     Coram:
     The Hon'ble Mr. Justice Sandeep Sharma, Judge.
     Whether approved for reporting?1 Yes.
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     For the petitioner                  Mr. Yashveer Singh Rathore,
                                         Advocate.
     For the respondent                            Mr. Sudhir Bhatnagar and Mr.
                                                   Arvind   Sharma,    Additional
                     r                             Advocates General with Mr.
                                                   Kunal Thakur, Deputy Advocate

                                                   General.
                                                   ASI Hem Chand, Police Station
                                                   Patlikuhal,   District Kullu,
                                                   Himachal Pradesh



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     Sandeep Sharma, J. (Oral)

Bail petitioner, namely Chhabile Ram, who is

behind the bars since 9.7.2020, has approached this Court in

the instant proceedings filed under S.439 CrPC, for grant of

regular bail in FIR No. 105, dated 25.6.2020 under Ss. 20 and

29 of the Narcotic Drugs & Psychotropic Substances Act

registered at Police Station Patlikuhal, District Kullu,

Himachal Pradesh.

Whether reporters of the local papers may be allowed to see the judgment?

2. Respondent-State, besides filing status report, has

also produced complete record, perusal whereof reveals that

on 25.6.2020, at 6.30 am, patrolling party present at Dobhi

Fojal saw person namely Diwan Chand coming from Village

Bihal. Since above named person having seen the police got

perplexed and made an attempt to flee from the spot after

throwing carry bag in the nearby grass, police stopped him for

interrogation. Since conduct of the above named person was

suspicious and he was unable to answer the queries of the

Police, Police deemed it necessary to conduct his search.

Though, at the first instance, police made an attempt to

associate independent witnesses, but since none was

available, police officials conducted search of carry bag

allegedly thrown by the accused Diwan Chand in nearby grass

and allegedly recovered 1.484 kg charas. After completion of

necessary codal formalities, police registered a case under S.20

of the Act ibid against aforesaid accused, Diwan Chand, who,

during investigation revealed to the police that he purchased

aforesaid commercial quantity of contraband from the person

namely Chuni Lal for a total consideration of Rs.1,85,000/-.

On the basis of aforesaid revelation made by Diwan Chand,

Police apprehended accused Chuni Lal, who further disclosed

to the Police that on the askance of Diwan Chand, he had

arranged the aforesaid contraband from present bail

petitioner, Chhabile Ram. Chuni Lal in his statement given to

the Police disclosed that on 24.6.2020, accused Diwan Chand

had approached him with the request to arrange for charas.

Chuni Lal disclosed to the police that since he knew Chhabile

Ram for the last two years, he assured Diwan Chand that

within a day or two, he will arrange charas for him. Chuni Lal

disclosed to the Police that Diwan Chand gave Rs.1,85,000/-

for purchase of charas. As per disclosure made by Chuni Lal to

the Police, in the evening of 24.6.2020, bail Diwan Chand had

delivered 1.484 kg charas near the house of Chuni Lal for a

sum of Rs.1,75,000/-, whereas, he gave Rs.5,000/-as

commission to Chuni Lal. As per compliance report filed in the

case at hand, Chuni Lal, after having received charas from

Chhabile Ram, hid the same near his house and thereafter

gave it to Diwan Chad. In the aforesaid background, case

under S. 29 of the Act came to be registered against the bail

petitioner and since 9.7.2020, he is behind the bars. Challan

stands filed in the competent Court of law but still the charges

have not been framed.

3. Prior to filing the present petition, bail petitioner

had approached this Court by way of CrMP(M) No. 1029 of

2020, for grant of anticipatory bail, which was dismissed as

withdrawn. Now, since Challan stands filed in the competent

Court of law and investigation is complete, present petition

has been filed under the changed circumstances, praying

therein for grant of regular bail.

4. Mr. Kunal Thakur, learned Deputy Advocate

General, while fairly admitting 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 the offence alleged

to have been committed by him, prayer made on his behalf for

grant of bail deserves outright rejection. While making this

court peruse the status report as well as evidence collected on

record by the investigating agency, Mr. Thakur vehemently

argued that there is overwhelming evidence available on record

suggestive of the fact that present petitioner was the main

supplier and for a sum of Rs.1,80,000/- sold commercial

quantity of charas to the person namely Chuni Lal, who

further sold the same to Diwan Chand, from whose conscious

possession, commercial quantity of contraband came to be

recovered on the date of alleged incident. Mr. Thakur

contends that on account of overwhelming evidence available

on record suggestive of the involvement of the bail petitioner,

bail petition having been filed by him deserves outright

rejection.

5. Having heard learned counsel for the parties and

perused the material available on record, this Court finds that

commercial quantity of contraband was recovered from the

carry bag allegedly thrown by accused Diwan Chad and not

from the conscious possession of the bail petitioner. As per

own story of the prosecution, Diwan Chand, after having seen

the police threw carry bag containing commercial quantity of

contraband in the nearby grass, but at this juncture, this

Court cannot lose site of the fact that recovery of aforesaid

commercial quantity of contraband from carry bag allegedly

thrown by Diwan Chand, was not effected in the presence of

any independent witness. The main accused, Diwan Chand,

who allegedly threw carry bag in the nearby grass, has

nowhere stated that the bail petitioner Chhabile Ram sold him

the commercial quantity of charas, rather, he disclosed to the

police that he approached Chuni Lal for purchase of charas

and gave him Rs.1,80,000/-. Chuni Lal though in his

statement given to the police admitted that he received

Rs.1,80,000/- from Diwan Chand, but, at the first instance, he

never told Diwan Chand that he would purchase charas from

present bail petitioner, Chhabile Ram. Chuni Lal in his initial

statement given to the Police reveals that he knew present bail

petitioner for two years and he approached him for the

purchase of charas. As per initial statement of Chuni Lal,

present bail petitioner gave Rs.5,000/- to Chuni Lal, as

commission and subsequently delivered around 1.5 kg charas

at Dobhi to Chuni Lal, however, in the subsequent statement

given to the police, Chuni Lal, claimed that he after having

received charas from the present bail petitioner, hid the same

in bushes near his house, but there is nothing in his

statement that at what time, he received contraband from bail

petitioner and delivered the same to Diwan Chand. As per

Chuni Lal, 1.5 kg charas was received by him in the evening of

24.6.2020 and thereafter, he hid the same in bushes near his

house but, as per prosecution story, Diwan Chand came to be

apprehended with commercial quantity of charas at 6.30 am

on 25.6.2020. There is nothing on record to show that Chuni

Lal, after having received charas from bail petitioner, delivered

the same to Diwan Chand in the intervening night of

24/25.6.2020, as such, it is difficult to conclude at this stage

that charas allegedly recovered from carry bag allegedly

thrown by Diwan Chand, was the charas given to him by

Chuni Lal, which he had purchased from bail petitioner,

Chhabile Ram. There is nothing in the statement of Chuni Lal,

that on 24.6.2020, or in the intervening night of

24/25.6.2020, Diwan Chand came to his house to collect

charas purchased by him from present bail petitioner,

Chhabile Ram. As per prosecution story, sum of Rs.1,75,000/-

was retained by Chhabile Ram, which he had spent in

repaying loan allegedly taken by him from his near and dear

ones but the Bank statement adduced on record reveals that

on 25.6.2020, Chhabile Ram had only deposited Rs. 10,000/-

in his bank account and at the same time no effort, if any, has

been made by investigating agency to ascertain the names of

the persons to whom Chhabile Ram allegedly repaid the loan.

6. Leaving everything aside, this Court finds from the

record that commercial quantity of charas never came to be

recovered from the conscious possession of the present bail

petitioner, rather same was recovered from co-accused Diwan

Chand, who otherwise at no point of time named present bail

petitioner rather, alleged that person namely Chuni Lal had

arranged charas for him. Though, investigating agency by

setting up a case that Chuni Lal had purchased charas from

bail petitioner, has made an attempt to connect the present

bail petitioner with the alleged offence but, for the reasons

discussed herein above, this Court, at this juncture finds no

concrete evidence to conclude complicity of the present bail

petitioner in the case at hand.

7. Though, Mr. Kunal Thakur, Learned Deputy

Advocate General vehemently argued that there is complete

bar under S.37 of the Act to grant bail in cases, where

commercial quantity of contraband is involved but, bare

perusal of provisions of S.37 of the Act nowhere suggests that

there is complete bar to grant bail in cases, where commercial

quantity is involved, rather, in such like cases, court after

having afforded opportunity to the Public Prosecutor can grant

bail in cases involving commercial quantity of contraband, if it

has reasons to believe that the person seeking bail is not guilty

of such offence and is not likely to commit offence while on

bail.

8. In the case at hand, since bail petitioner has been

implicated in the case on the basis of statement of co-accused,

that too without there being any concrete evidence, this Court

finds sufficient reasons to consider prayer for grant of bail.

9. Hon'ble Apex Court and this Court in a catena of

cases have repeatedly held that one is deemed to be innocent,

till the time, he/she is proved guilty in accordance with law. In

the case at hand, complicity, if any, of the bail petitioner is yet

to be established on record by the investigating agency, as

such, this Court sees no reason to let the bail petitioner

incarcerate in jail for an indefinite period during trial,

especially when nothing remains to be recovered from him.

Apprehension expressed by learned Deputy Advocate General,

that in the event of being enlarged on bail, bail petitioner may

flee from justice or indulge in such offences again, can be best

met by putting the bail petitioner to stringent conditions.

10. 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 can

not be curtailed for indefinite period, especially when his/her

guilt is yet to be 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.

11. Hon'ble Apex Court in Sanjay Chandra versus

Central Bureau of Investigation (2012)1 Supreme Court

Cases 49 has held that gravity alone cannot be a 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.

12. In Manoranjana Sinh alias Gupta versus CBI,

(2017) 5 SCC 218, Hon'ble Apex Court has held that the 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 also, normal rule is of bail and not jail. Apart from

above, Court has to keep in mind nature of accusations,

nature of evidence in support r thereof, severity of the

punishment, which conviction will entail, character of the

accused, circumstances which are peculiar to the accused

involved in that crime.

13. The Apex Court in Prasanta Kumar Sarkar versus

Ashis Chatterjee and another (2010) 14 SCC 496, has laid

down various principles to be kept in mind, while deciding

petition for bail viz. prima facie case, nature and gravity of

accusation, punishment involved, apprehension of repetition of

offence and witnesses being influenced.

14. In view of above, bail petitioner has carved out a case

for himself. Consequently, present petition is allowed. Petitioner

is ordered to be enlarged on bail, subject to furnishing fresh bail

bonds in the sum of Rs.5,00,000/- with one local surety in the

like amount, to the satisfaction of the learned trial Court, besides

the 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

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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