Rohit Kumar vs State Of Himachal Pradesh
2021 Latest Caselaw 97 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                       Cr.MP(M) No. 2117 of 2020
                                        Decided on: 04.01.2021
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                                                                              .
    Rohit Kumar                                          ...........Petitioner





                                      Versus
    State of Himachal Pradesh                         ..........Respondent
     __________________________________________________________





    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1

    For the Petitioner                   :      Mr. Ravi Tanta, Advocate.





    For the Respondent                   :
                                  Mr. Sudhir    Bhatnagar, Additional
                                  Advocate General.
    ___________________________________________________________
    Sandeep Sharma, Judge (oral):

(Through Video Conferencing)

By way of present petition filed under Section 439 of Cr.PC,

prayer has been made on behalf of the bail petitioner namely Rohit Kumar,

who is behind the bars since 31.10.2020, for grant of regular bail in

connection with FIR No. 61/2020, dated 31.10.2020 under Section 20 of

Narcotic Drugs and Psychotropic Substance Act, 1985, (in short "the Act")

registered at P.S. Nerwa, District Shimla, H.P.

2. Perusal of status report having been filed by the respondent-

State reveals that on 31.10.2020, bail petitioner was going to Bharanu

from Dwara on foot but since he, after having seen the police, got

perplexed and made an attempt to run away, Police apprehended him and 1 Whether the reporters of the local papers may be allowed to see the judgment?

inquired about the reasons for his fear. Since the bail petitioner was

unable to render proper explanation for his abnormal behaviour, police

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associated independent witnesses and carried out his personal search

and search of the carry bag being carried by him and allegedly recovered

900 grams of charas. Since the petitioner was unable to tender proper

explanation with regard to possession of aforesaid quantity of contraband,

police after completion of necessary codal formalities, registered FIR

detailed herein above against the petitioner and since then he is behind

bars. Though investing agency, after having completed investigation,

prepared challan but the same has not been filed till date.

3. Shri Sudhir Bhatnagar, learned Additional Advocate General, while

fairly admitting that nothing remains to be recovered from bail petitioner,

contends that keeping in view gravity of offence alleged to have been

committed by petition he does not deserve any leniency, rather, his prayer

for grant of bail deserves to be rejected outrightly. While making this court

peruse record, Mr. Bhatnagar submits that there is ample evidence

collected on record by the investigating agency suggestive of the act that

at the time of alleged incident, bail petitioner was carrying 900 grams of

charas and as such, his release on bail at this stage, would have adverse

impact on society. Lastly Mr. Bhatnagar submits that otherwise also, in the

event of being enlarged on bail, he may not only flee from justice rather

may again indulge in such activities,as such, his prayer for grant of bail

may be rejected.

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4. Having heard learned counsel for parties and perused status

report placed on record by the respondent-State, this court finds that on

the date of alleged incidence, 900 grams charas was allegedly recovered

from the carry bag being carried by the bail petitioner in the presence of

two independent witnesses as such, it is difficult at this stage to accept

submission of learned counsel for the bail petitioner, that the bail petitioner

has been falsely implicated. However, having taken note of the fact that

the bail petitioner is 19 years of age and at present pursuing studies of BA

1st year, prayer made on his behalf deserves to be considered

sympathetically. Otherwise also, status report filed by the respondent-

State does not suggest that in the past bail petitioner had been indulging

in such activities, rather he appears to be a first offender. No doubt,

quantity of Charas allegedly recovered from conscious possession of bail

petitioner does suggests that he is not only a drug addict rather, may be a

part of some racket indulging in trade of drugs but still having taken note

of his tender age and past history, he needs to given a chance to rectify

his mistake. Otherwise also, taking note of quantity of contraband, which

is intermediate, rigors of S. 37 of Act are not attracted to this case, as

such, during the pendency of investigation/trial, he can be ordered to be

enlarged on bail. Since examination of bail petitioner of first year are likely

to be held in March, 2021, it may not be proper to keep the bail petitioner

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behind bars for an indefinite period during trial. Otherwise guilt if any of the

bpi is yet to be established in accordance with law by the invstigating

agency by leading cogent and convincing evidence, as such, this Court

sees no reason to let the bail petitioner incarcerate in jail, for an indefinite

period during trial, which in any eventuality is likely to be delayed on

account of covid-19. Otherwise also Hon'ble Apex Court as well as this

Court have held in catena of judgments, that till the time, guilt of a person

is not proved in accordance with law, he/she is deemed to be innocent.

6. 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

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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.

3. 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.

4. 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

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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.

5. 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.

7. 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

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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.

8. 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

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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."

9. 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

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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."

10. 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.

11. 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

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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. 1,00,000/- with one local

surety in the like amount to the satisfaction of learned Chief Judicial

Magistrate/Judicial Magistrate First Class,, Chopal 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.

12. 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.

13. Any observations made hereinabove shall not be

construed to be a reflection on the merits of the case and shall remain

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confined to the disposal of this application alone. The petition stands

accordingly disposed of.

Dasti on usual terms.

                                                      (Sandeep Sharma)





                                                           Judge

    4th January, 2021
        (reena)     r