Tej Singh vs Unknown
2021 Latest Caselaw 4525 HP

    IN   THE     HIGH   COURT    OF   HIMACHAL         PRADESH,            SHIMLA




                                                            .
                    ON THE 15th DAY OF SEPTEMBER, 2021





                                BEFORE
                  HON'BLE MR. JUSTICE SANDEEP SHARMA





               CRIMINAL MISC. PETITION (MAIN) No.1684 of 2021

         Between:

         TEJ SINGH,





         AGED 35 YEARS,
         S/O SH. MANI SINGH,
         R/O VILL. KHADEEN,
         P.O. NAYA GRAM,
         TEHSIL KASAULI,

         DISTRICT SOLAN,

         HIMACHAL PRADESH.



                                                                ....PETITIONER



         (BY MS. SHEETAL VYAS,
         ADVOCATE)




         AND





         STATE OF HIMACHAL PRADESH,
         THROUGH, SECRETARY HOME,
         GOVERNMENT OF HIMACHAL





         PRADESH, SHIMLA, HIMACHAL
         PRADESH.
                                                               ....RESPONDENT

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




                                           ::: Downloaded on - 31/01/2022 23:04:40 :::CIS
                                               2




          AND MR. NARENDER THAKUR,




                                                                       .
          DEPUTY ADVOCATES GENERAL)





    Whether approved for reporting?. Yes.





    This petition coming on for orders this day, the Court passed the following:

                                          ORDER

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

has been made on behalf of the bail petitioner namely Tej Singh, for grant of

regular bail in FIR No. 269/2020 dated 19.12.2020, under Sections 21, 26 and 29

of the ND&PS Act, registered at Police Station Sadar, District Hamirpur, Himachal

Pradesh. Respondent-State has filed the Status report in terms of order dated

1.9.2021

2. Record/status report reveals that on 18.12.2020, police received

secret information that present bail petitioner alongwith his wife is staying in

Patiyal Guest House, Matansidh, District Hamirpur, and he indulges in the illegal

trade of narcotics. On the basis of aforesaid information, police raided the room

No. 105 of the aforesaid guest house and allegedly, recovered 28 grams of

heroin/chitta. Apart from present bail petitioner, his wife Nisha and other two

persons namely Amit and Parveen were also present in the room at the time of

raid. Since no plausible explanation came to be rendered on record with regard to

possession of aforesaid quantity of contraband by the accused, police after

completion of necessary codal formalities, lodged an FIR, as detailed hereinabove

and since then, present bail petitioner is behind bars, whereas other remaining

accused have been already enlarged on bail by the learned Special Judge-II,

.

Hamirpur.

3. Before filing the petition at hand, petitioner had approached this

Court for grant of bail, but same was dismissed as withdrawn. Now since challan

stands filed in the competent court of law and nothing remains to be recovered

from the bail petitioner coupled with the fact that other co-accused stand already

enlarged on bail, petitioner has approached this Court in the instant proceedings

for grant of regular bail.

4. Mr. Sudhir Bhatnagar, learned Additional Advocate General while

fairly acknowledging 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 antecedents of the petitioner, he

does not deserve any leniency and as such, his application for grant of bail

deserves outright rejection, who in the event of his being enlarged on bail may

indulge in such like activities again. While referring to the status report, Mr.

Bhatnagar, submits that in past also, two cases already stand registered against

the bail petitioner under the NDPS Act and as such, it can be safely presumed

that he is not a drug addict, rather has become a drug paddler and as such,

prayer from grant of bail made on his behalf may not be accepted.

5. Having heard learned counsel for the parties and perused the

material available on record, this Court finds that on the date of the alleged

incident, intermediate quantity of contraband was recovered from the room

occupied by the present bail petitioner and other three persons named herein

.

above. It is also not in dispute that police after having received secrete

information, recovered 28 grams of chitta/herion from room No. 105 occupied by

the present bail petitioner in the presence of the independent witnesses and as

such, it is difficult to believe that petitioner has been falsely implicated. However

having taken note of the fact that at the time of recovery, four persons were in the

room and contraband came to be recovered from beneath the pillow, where

allegedly present bail petitioner was sitting, it would be too premature at this stage

to rule out/conclude complicity, if any, of the bail petitioner in the alleged

commission of the offence. Whether contraband found in the room was

kept/brought by the present bail petitioner is a question, which needs to be

determined in the totality of evidence collected on record by the prosecution,

especially, when three other persons were also present in the room. Since

quantity of contraband recovered from room occupied by the petitioner is

intermediate, rigours of Section 37 of the Act, are otherwise not attracted. No

doubt, petitioner has indulged in the crime having adverse impact on the society,

but this court cannot lose sight of the fact that guilt, if any, of the bail petitioner is

yet to be determined in the totality of evidence led on record by the prosecution.

Since other three co-accused already stand enlarged on bail and nothing remains

to be recovered from the bail petitioner, there appears to be no reason for this

court to let the bail petitioner incarcerate in jail for an indefinite period during

trial. No doubt, as per status report two cases under the Act stand registered

against the bail petitioner, but since no material worth credence has been led on

.

record by the investigating agency suggestive of the fact that petitioner indulges in

the illegal trade of the narcotics, this Court sees no reason to curtail his freedom

indefinitely during trial. Otherwise also, no fruitful purpose would be served by

keeping the bail petitioner behind the bars, rather, he needs to be provided

immediate medical help so that he is brought back to the mainstream.

Apprehension expressed by learned Additional Advocate General that in the event

of bail petitioner being enlarged on bail, he may flee from justice or may again

indulge in such activities, can be best met by putting bail petitioner to stringent

conditions.

6. Otherwise also, it is not understood that in case petitioner had been

repeatedly indulging in the illegal trade of narcotics, why till date, respondent-

State has not filed any application for cancellation of bail in two other cases,

already stand registered against him. It is not only the solitary case ,where such

omission on the part of the State, has come to the notice of this Court, but in

number of cases, State has opposed the grant of bail to the accused on the ground

that in past, cases are also pending against the accused. But it is not understood

that why applications are not being filed before the courts for cancellation of bail.

Learned Additional Advocate General is directed to take up the matter with the

concerned quarters so that immediate steps are taken by the concerned

investigating agency to file application for cancellation of bail in those cases,

where accused despite having obtained bail from the competent court of law have

.

indulged in the crime again.

7. It has been repeatedly held by Hon'ble Apex Court as well as this

Court in catena of cases that one is deemed to be innocent till the time his /her

guilt is not proved, in accordance with law. Since guilt, if any, of the bail

petitioner is yet to be proved, in accordance with law, his prayer for grant of bail

deserves consideration, especially when he is behind bars for more than nine

months. Apprehension expressed by learned Additional Advocate General that in

the event of bail petitioner being enlarged on bail, he may flee from justice or may

again indulge in such activities, can be best met by putting bail petitioner to

stringent conditions. It has been repeatedly held by the Hon'ble Apex Court in

various pronouncements that pendency of criminal cases, if any cannot be reason

/basis to deny the bail to the petitioner in subsequent cases.

8. 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.

9. 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."

10. 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."

11. 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.

12. Reliance is placed on judgment passed by the Hon'ble Apex Court in

case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731,

relevant para whereof has been reproduced herein below:-

"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in

violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have

been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC

569).

13. 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 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.

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

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.

14. In view of the aforesaid discussion as well as law laid down by the

Hon'ble Apex Court, 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.

1,00,000/- with two local sureties 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.

15. 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.

16. 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.

Copy dasti.

    15TH September, 2021                                     (Sandeep Sharma),
          (manjit)                                                  Judge