Sh. Sandeep Aery @ Laddi vs Unknown
2022 Latest Caselaw 1 HP

    IN    THE      HIGH     COURT        OF    HIMACHAL           PRADESH,            SHIMLA




                                                                       .
                        ON THE 3rd DAY OF JANUARY, 2022





                                   BEFORE
                     HON'BLE MR. JUSTICE SANDEEP SHARMA





                CRIMINAL MISC. PETITION (MAIN) No.2457 of 2021
          Between:

          SH. SANDEEP AERY @ LADDI,
          S/O SH. PREM CHAND,





          AGED 35 YEARS,
          R/O VPO GONDPUR,
          TARF JAICHAND, TEHSIL HAROLI,
          DISTRICT UNA, HIMACHAL PRADESH-176601
                                                                           ....PETITIONER

          (BY M/S ONKAR JAIRATH AND

          MR. SHUBHAM SOOD, ADVOCATES)

          AND



          STATE OF HIMACHAL PRADESH.
                                                                          ....RESPONDENT
          (MR. SUDHIR BHATNAGAR,




          AND MR. ARVIND SHARMA
          ADDITIONAL ADVOCATES GEENRAL





          WITH MR. NARENDER THAKUR,
          AND MR. GAURAV SHARMA,
          DEPUTY ADVOCATES GENERAL)





    Whether approved for reporting?.


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

                                          ORDER

Bail petitioner namely Sandeep Aery, who is behind the bars

.

since 26.8.2021, has approached this court in the instant proceedings filed

under Section 439 Cr.PC, for grant of regular bail, in case FIR No. 200/21

dated 26.8.2021, registered at Police Station Haroli, District Una, Himachal

Pradesh, under Section 21 of the NDPS Act.

2. Pursuant to orders dated 24.12.2021 and 30.12.2021,

respondent-state has filed the status report. ASI Baldev Raj, P.S. Haroli,

District Una, H.P., is also present with the records. Records perused and

returned.

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

26.8.2021, allegedly police apprehended the bail petitioner herein, who

after having seen police made an attempt to run away from the spot and

recovered 7.40 grams of chitta/heroin from his possession. Since no

plausible explanation was rendered by the present bail petitioner qua the

possession of the aforesaid quantity of contraband, police after completion

of the necessary codal formalities, registered the FIR as detailed herein

above, against him on 26.8.2021 and since then, he is behind the bars.

Since challan stands filed in the competent court of law and nothing

remains to be recovered from him, bail petitioner has approached this

Court in the instant proceedings, praying therein for grant of regular bail.

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

.

while fairly admitting factum with regard to filing of challan in the

competent court of law submits that though nothing remains to be

recovered from the bail petitioner, but keeping in view the gravity of offence

alleged to have been committed by him, he does not deserve any leniency

and as such, prayer made on behalf of the petitioner for grant of bail

deserves to be rejected. While making this Court to peruse status

report/record, Mr. Bhatnagar, contends that the bail petitioner is drug

paddler and in the past also, number of cases have been registered against

him under the Act and as such, it would not be in the interest of justice to

enlarge him on the bail, who in the event of being enlarged on bail, may not

only flee from justice, but may again indulge in such like activities.

5. Having heard learned counsel for the parties and perused

material available on this record, this Court finds that intermediate

quantity of contraband i.e. 7.40 grams of chitta/heroin, came to be

recovered from the bail petitioner in the presence of the independent

witnesses and as such, it cannot be said that petitioner has been falsely

implicated. Record further reveals that in past also, bail petitioner had

been indulging in these activities and as such, cases under NDPS Act,

stand registered against him. Since guilt of the petitioner in the cases

registered against him is yet to be determined by the court below, pendency

.

of such cases, cannot be a ground to deny the prayer made in the instant

application. No doubt pendency of the previous case, if any, is a factor, to

be borne in mind by the court while considering the bail in subsequent

case(s), but since respondent-State after having lodged FIR, which is

subject matter of the case, has itself not filed application for cancelation of

bail in the cases already stand registered against the bail petitioner, it

cannot be permitted at this stage to oppose the prayer made on behalf of

the petitioner for grant of bail on account of registration of cases in the

past. Moreover, contraband allegedly recovered from the petitioner is of

"intermediate quantity" and as such, rigors of Section 37 are not attracted

in the Case. Challan stands filed in the competent court of law and nothing

remains to be recovered from the bail petitioner and as such, no fruitful

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

an indefinite period, especially when he has already suffered for

approximately five months. No doubt, bail petitioner has committed

serious offence having adverse impact on the society, but this court cannot

loose sight of the fact that guilt, if any, of the petitioner is yet to be

established on record by leading cogent and convincing evidence and as

such, this Court sees no reason to let him incarcerate in jail indefinitely

during trial. Hon'ble Apex Court as well as this Court in catena of cases

.

have repeatedly held that one is deemed to be innocent till the time guilt, if

any, of his/her is not proved in accordance with law. In the case at hand

also, guilt, if any, of the accused is yet to be proved in accordance with law,

by leading cogent and convincing material on record. Apprehension

expressed by the learned Additional Advocate General that in the event of

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

met by putting the bail petitioner to stringent conditions as has been fairly

stated by the learned counsel for the petitioner.

6. 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.

7. 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."

8. 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."

9. 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.

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

    3rd January, 2022                                      (Sandeep Sharma),
          (manjit)                                              Judge