Himachal Pradesh High Court

Munshi Ram vs State Of Himachal Pradesh on 16 December, 2022

Bench: Sandeep Sharma

         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                        CrMP(M) No. 2689 of 2022
                                  Decided on: December 16, 2022




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    _______________________________________________________________





    Munshi Ram                                    ...........Petitioner
                                   Versus
    State of Himachal Pradesh                        ....Respondent
    _______________________________________________________________





    Coram:
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1No.

    For the Petitioner                     :      Mr. Rahul Singh Verma and Mr.





                                                  Anubhav Chopra, Advocates.

    For the Respondent                     :      Mr. Sumesh Raj and Mr. Dinesh
                                                  Thakur,  Additional Advocates
                                                  General.

    _______________________________________________________________

    Sandeep Sharma, Judge (oral):

Bail petitioner-Munshi Ram, who is behind bars since

15.10.2020, has approached this court in the instant proceedings,

praying therein for grant of regular bail in FIR No. 137 of 2020 dated

15.10.2022, registered at Police Station Puruwala, District Sirmaur,

under Ss. 21 and 29 of Narcotic Drugs and Psychotropic Substances

Act.

2. In terms of order dated 9.12.2022, respondent-State has

filed status report and HC Dalip Kumar No. 516, PAB Rampurghat,

Police Station Puruwala, District Sirmaur, Himachal Pradesh has come

present with record. Record perused and returned.

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

15.10.2022, at 3.30 pm, police party present near Rampurghat, on the

basis of secret information intercepted a motor cycle bearing

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

registration No. HP-17E-3388 being driven by the petitioner, for

checking. Since the petitioner as well pillion rider got perplexed after

having seen the police, police deemed it necessary to conduct search

of the riders as also of the luggage being carried by them. Police, after

associating independent witnesses, effected search of the petitioner,

pillion rider as well as luggage and allegedly recovered 840 capsules of

Spasmo Proxyvon Plus. Since the capsules so recovered contained

prohibited drug namely Tramadol, police asked petitioner to produce

bill of same but he was unable to produce the same as such, police

after having completed necessary codal formalities, registered FIR, as

detailed hereinabove on 15.10.2022 and since then, the petitioner and

pillion rider are behind the bars. Since investigation is complete and

nothing remains to be recovered from the bail petitioner, he has

approached this court in the instant proceedings, praying therein for

grant of regular bail.

4. While fairly admitting factum with regard to completion of

investigation and filing of Challan in the competent court of law, Mr.

Dinesh Thakur, learned Additional Advocate General submits that

though nothing remains to be recovered from bail petitioner but

keeping in view gravity of offence alleged to have been committed by

the bail petitioner, he does not deserve leniency and his prayer for bail

deserves outright rejection. While making this court perused status

report/record, learned Additional Advocate General states that there is

overwhelming evidence on record suggestive of the fact that the bail

petitioner alongwith co-accused indulges in illegal trade of narcotics as

such, it may not be in the interest of justice to enlarge him on bail, as in

that event, he may not only flee from justice but may indulge in such

activities again.

5. Having heard learned counsel for the parties and perused

the material available on record, this court finds that on 15.10.2020,

police allegedly recovered commercial quantity of contraband from the

bag being carried by the riders of motor cycle in question, in the

presence of independent witnesses. Interestingly aforesaid

r to independent witnesses have turned hostile and not supported the

prosecution case.

True it is that statements of other material prosecution

witnesses are yet to be recorded as such it would be too premature at

this stage to conclude innocence or guilt, if any, of the bail petitioner in

the commission of alleged offence, but having taken note of fact that

the bail petitioner is behind bars for more than two years and till date,

only one prosecution witness out of 21 witnesses has been examined,

prayer of the bail petitioner for grant of bail on account of delay in

conclusion of trial, deserves to be considered. No doubt, commercial

quantity of contraband came to be recovered from the conscious

possession of the bail petitioner, as such, rigours of S.37 of the Act are

attracted in the present case, but a bare reading of the aforesaid

provision, nowhere suggests that there is complete bar for the court to

grant bail in cases involving commercial quantity of contraband, rather,

court, after having afforded opportunity of hearing to the public

prosecutor can always proceed to enlarge the accused on bail, if it is

satisfied that the accused has been falsely implicated in the case and

there is no likelihood of the accused indulging in such activities again,

in case enlarged on bail.

7. Though, on merits, petitioner may not have a very good

case for grant of bail but definitely, having note of the fact that he is

behind the bars for last more than two years coupled with the fact that

there is no likelihood of the conclusion of trial in near future, no fruitful

purpose would be served by keeping the bail petitioner behind the bars

for an indefinite period, which otherwise amounts to pre-trial conviction.

In the case at hand, FIR was registered on 15.10.2020 and till date,

prosecution has examined only one witnesses out of total of twenty

one, meaning thereby, in all probabilities, trial is likely to consume

considerable time for its conclusion.

8. Hon'ble Apex Court having taken note of inordinate

delay in conclusion of trial in similar facts ordered for enlargement of

accused on bail in Nitish Adhikary @ Bapan v. The State of West

Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on

1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu

and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022,

decided on 1.8.2022, , who were also framed under Narcotic Drugs

and Psychotropic Substances Act and were behind the bars for

approximately two years and there was no likelihood of conclusion

of trial in near future, subject to certain conditions.

9. Placing reliance upon aforesaid judgments, a Co-

ordinate Bench of this court in CrMP(M) No. 1328 of 2022 titled

Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022,

also ordered for enlargement of an accused, who was allegedly

apprehended carrying commercial quantity of Tramadol, on the

ground of delay in conclusion of trial.

10. Apart from above judgment, Co-ordinate Bench of this

court while granting bail vide order dated 22.3.2021 in CrMP(M) No.

35 of 2021 titled Ajay Singh v. State of Himachal Pradesh, also

placed reliance upon a judgment delivered by a three-Judge Bench

in Cr. Appeal No. 668 of 2020 titled Amrit Singh Moni v. State of

Himachal Pradesh, decided on 12.10.2020, wherein petitioner was

allegedly found in possession of 3285 grams of charas from a

vehicle, wherein four other persons were sitting.

11. Learned Counsel appearing for the petitioner, to

substantiate his plea for enlarging the petitioner on bail, has referred

to order dated 12.10.2020 passed by a three judges Bench of the

Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit

Singh Moni v. State of Himachal Pradesh, whereby petitioner

therein, facing trial for recovery of 3.285 kilograms charas from a

vehicle, alongwith four other persons, was enlarged on bail, for

having been in detention for 2 years and 7 months, as till then out of

14 witnesses, 7 witnesses were yet to be examined and last witness

was examined in February, 2020 and, thereafter, there as no further

progress in the trial.

12. Learned Additional Advocate General, referring to

judgment of a three Judges Bench of Supreme Court, passed on

19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal

contends that period of detention cannot be a ground for enlarging

the petitioner on bail.

13. The learned Counsel appearing for the petitioner

submits that in Mohit Aggarwal, huge commercial quantity of 20

kilograms of Tramadol, against minimum commercial quantity of 250

grams, was recovered, whereas, in the present case, the recovered

quantity is little more than the commercial quantity.

14. In similar circumstances, in CrMP(M) No. 1255 of 2022,

titled Puran Chand v. State of Himachal Pradesh, decided on

28.7.2022, another Co-ordinate Bench of this Court, having taken

note of inordinate delay in conclusion of trial, ordered enlargement

on bail of the person, who was apprehended with 1.996 kg of

charas.

15. In view of the law taken note herein above, bail

petitioner is definitely entitled to be released on bail, keeping in view

the delay in trial.

16. 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. Apprehension

expressed by learned Assistant 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.

17. 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.

18. 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.

19. 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.

20. 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.

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

for himself, as such, present petition is allowed. Bail petitioner is

ordered to be enlarged on bail, subject to furnishing bail bonds in the

sum of Rs.5.00 Lakh with two sureties surety in the like amount

each, 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 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