Himachal Pradesh High Court

Akshay Kumar vs Unknown on 25 October, 2021

Bench: Sandeep Sharma

THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 25TH DAY OF OCTOBER 2021

BEFORE

HON'BLE MR. JUSTICE SANDEEP SHARMA

CRIMINAL MISC. PETITION(MAIN) NO. 1996 OF 2021

Between:-

AKSHAY KUMAR AGED 24 YEARS, SON OF SHRI DINA NATH,

RESIDENT OF VILLAGE JAMTHLI GHAT (SARIUN KHAS), POST OFFICE HAWAN, TEHSIL GHUMARWIN, DISTRICT BILASPUR, H.P., PIN-174003. r ... PETITIONER (BY MR. NARESH K. SHARMA, ADVOCATE)

AND

STATE OF HIMACHAL PRADESH .. RESPONDENT

(MR. SUDHIR BHATNAGAR AND MR. DESH RAJ THAKUR, ADDITIONAL ADVOCATES GENERAL WITH MR. KAMAL KISHORE AND

MR. NARINDER THAKUR, DEPUTY ADVOCATES GENERAL)

Whether approved for reporting:

These petitions coming on for orders this day, the court passed the following:

OR D ER

Bail petitioner, Akshay Kumar, who is behind the bars since

10.8.2021, has approached this court in the instant proceedings filed under

S.439 CrPC, for grant of regular bail in FIR No. 82, dated 10.8.2021,

registered at Police Station Banjar, District Kullu, Himachal Pradesh under

Ss. 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act

(hereinafter, 'Act')

2. Respondent State has filed status report in terms of order

dated 20.10.2021. HC Deepak Kumar of Police Station, Banjar, District

Kullu, Himachal Pradesh, has also come present with record/status report.

Status report perused and returned.

3. Close scrutiny of record/status report reveals that on

10.8.2021, police stopped vehicle bearing registration No. HP-01B-0830

being driven by present bail petitioner. Apprehending that the person

sitting next to the bail petitioner, in the car, may be possessing some

suspicious substance, Police deemed it necessary to cause search of the

vehicle as well as of the person sitting in car and allegedly recovered 1.107

kg of charas from the bag kept under the legs of person namely Ravinder

Kumar. Since no plausible explanation came to be rendered qua

possession of aforesaid quantity of contraband by present bail petitioner as

well as the co-accused Ravinder Kumar, police after having registered FIR

detailed herein above, took present bail petitioner and co-accused into

custody. Since investigation is complete and nothing remains to be

recovered from present bail petitioner, he has approached this court in the

instant proceedings, praying therein for grant of regular bail.

4. Mr. Desh Raj Thakur, learned Additional Advocate General,

while fairly admitting that nothing remains to be recovered from the present

bail petitioner, states that keeping in view gravity of offence alleged to have

been committed by the bail petitioner, he does not deserve leniency and as

such, his prayer for bail deserves outright rejection. Mr. Thakur further

submits that since commercial quantity of charas came to be recovered

from car being driven by present bail petitioner, it cannot be said that he

has been falsely implicated. Lastly, Mr. Thakur, submits that otherwise

also, it may not be in the interest of justice to enlarge the petitioner on bail

during pendency of trial, because in that event, he may not only flee from

justice but may again indulge in such activities, as such, his prayer for

grant of bail deserves outright rejection.

5. Having heard learned counsel for the parties and perused

material available on record, this court finds that commercial quantity of

charas came to be recovered from the bag kept under the legs of Ravinder

Kumar, co-accused, while he was traveling in vehicle bearing registration

No. HP-01B-0830 being driven by the present bail petitioner. As per own

case of prosecution, Police, after having suspected that the co-accused

may be carrying some suspicious substance, deemed it necessary to

cause his personal search and allegedly recovered commercial quantity of

contraband, from the bag kept under his legs. It is not in dispute that

vehicle involved in the incident is a taxi, which at the relevant time was

being driven by the present bail petitioner. There is no material worth

credence available on record, suggestive of the fact that present bail

petitioner had prior acquaintance, if any, with the co-accused Ravinder

Kumar, from whose conscious possession commercial quantity of

contraband came to be recovered. Call Detail Report placed on record

reveals that aforesaid commercial quantity of contraband was purchased

by co-accused Ravinder Kumar from one lady namely Kallu and in this

regard, he was in constant touch with above named lady through his

mobile phone. As per Call Detail Record, there is no conversation, if any,

inter se present bail petitioner and lady namely Kallu, from whom, the co-

accused allegedly purchased the commercial quantity of contraband.

6. Since in the case at hand, commercial quantity of contraband

came to be recovered from the conscious possession of co-accused

Ravinder, who was traveling in the car, as such rigours of S. 37 of act are

attracted. However, careful perusal of aforesaid provision of law, nowhere

suggests that there is complete bar/prohibition to grant bail in cases

involving commercial quantity of contraband, rather, in such like cases,

court after affording due opportunity of hearing to the Public Prosecutor,

can proceed to grant bail in cases involving commercial quantity, if it is

satisfied that the accused has been falsely implicated and there is no

likelihood of his indulging in such activities again during trial. In the case at

hand, this court having taken note of the fact that present bail petitioner

was driving taxi coupled with the fact that contraband came to be

recovered from the bag kept under legs of co-accused Ravinder Kumar

and further that there is no call detail report suggestive of the fact that

present bail petitioner was in constant touch with the supplier, namely

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

period during trial. As per status report, no case in past stands registered

against present bail petitioner, whereas, a case under the Act ibid, stands

registered against co-accused, Ravinder Kumar, from whose conscious

possession, commercial quantity came to be recovered, as such, petitioner

otherwise being the first offender deserves leniency.

7. 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 petitioners 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 of learned Additional Advocate General that in the event of the bail

petitioner being enlarged on bail, he may flee from justice, can be best

met by putting the bail petitioner to stringent conditions.

8. 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 been further

held by the Hon'ble Apex Court in the aforesaid judgment that a person is

believed to be innocent until found guilty.

9. 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.

10. 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 thereof,

severity of the punishment, which conviction will entail, character of the

accused, circumstances which are peculiar to the accused involved in that

crime.

11. 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.

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

himself, as such, present petition is allowed. Petitioner is ordered to be

enlarged on bail, subject to his furnishing bail bonds in the sum of

Rs.1,00,000/- with two local sureties in the like amount, to the satisfaction

of the investigating officer, 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 from appearance by filing appropriate application;