Himachal Pradesh High Court
Tarun Kumar vs Unknown on 4 January, 2022
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 4th DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) No.2277 of 2021
Between:
TARUN KUMAR,
AGED 27 YEARS,
S/O YOGINDER SINGH,
RESIDENT OF NANK DERI ROAD,
NEAR ANUPAM SCHOOL,
HODAL (PALWAL), HARYANA,
PRESENTLY LODGED IN KANDA JAIL,
DISTRICT SHIMLA, HP.
....PETITIONER
(BY MS. RAJVINDER SANDU,
ADVOCATE)
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:
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2
ORDER
.
Bail petitioner namely Tarun Kumar, who is behind the bars
since 11.7.2018, has approached this court in the instant proceedings filed
under Section 439 Cr.PC, for grant of regular bail, in case FIR No. 166/18
dated 11.7.2018, registered at Police Station Sunder Nagar, District Mandi,
Himachal Pradesh, under Sections 20 and 29 of the NDPS Act.
2. Pursuant to orders dated 29.11.2021 and 13.12.2021,
respondent-state has filed the status report. SI Subhash Chand, has also
come present with the records. Records perused and returned.
3. Close scrutiny of record/status report reveals that on
11.7.2018, police party present at Naka laid near Pungh, stopped Punjab
Roadways bus bearing registration No. PB-12Q-9959 enroute Manali to
Chandigarh, at 11:55 AM for checking. On seats No. 25 and 26, two
persons were sitting, whereas none was sitting on the seat No. 24 and one
bag was kept in the middle seat of persons sitting at seat No. 25 and 26.
Since none of the occupants of the vehicle/bus agreed to become the
independent witness, police after having associated driver and conductor of
the bus checked the bag and allegedly recovered 4.02 kg of charas.
Allegedly police also recovered one jean pant from the bag, wherein bail
petitioner herein had kept his Aadhar Card. Occupants of seat No.s 25 and
26 disclosed their names as Babu Ram and Tarun Kumar. Since no
plausible explanation came to be rendered qua the possession of the
.
aforesaid quantity of contraband by the above named persons, police after
completion of necessary codal formalities registered FIR against them and
since then, petitioner herein is behind the bars, whereas co-accused Babu
Ram has expired. Since challan stands filed in the competent court of law
and statements of all the material prosecution witnesses stand recorded,
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 the challan in the
competent court of law contends that only three prosecution witnesses
remain to be examined and as such, it may not be in the interest of justice,
to enlarge the bail petitioner on bail at this stage. He submits that
otherwise also keeping in view the gravity of the offence alleged to have
been committed by the bail petitioner, whereby he has been apprehended
with the commercial quantity of the contraband, prayer made on behalf of
the petitioner for grant of bail, deserves outright rejection.
5. Having heard learned counsel for the parties and perused
material available on this record, this Court finds that on 11.7.2018,
police party present at Naka laid near Pungh stopped bus bearing
registration No. PB-12Q-9959 and allegedly, recovered one bag lying on
.
seat No.24. Since occupants seated on seat Nos. 25 and 26 of the bus were
unable to render proper explanation qua the bag lying on seat No.24, police
searched the bag in the presence of the independent witnesses and
recovered the commercial quantity of charas. As per story of the
prosecution, co-accused Babu Ram, who has since expired, purchased the
aforesaid quantity of charas, from person namely Ghanshayam. Though
police took person namely Babu Ram to the house of the Ghanshayam, but
no person of such name was found, however call details report placed on
record reveal that prior to the alleged incident, there was some telephonic
conversation inter-se deceased accused Babu Ram and person namely
Ghanshyam, but admittedly, there is no call details report, if any, with
regard to the conversation, if any, inter-se present bail petitioner and
person namely Ghanshyam. Since both the accused namely Babu Ram
and Tarun Kumar, belong to State of Haryana, they came to be arrested on
account of bag found lying on seat No. 24. As per own case of the
prosecution, police associated two independent witnesses i.e. driver and
conductor of the vehicle namely Kuldeep Kumar and Jagtar Singh.
Statement of Jagtar Singh (PW10) stands recorded, whereas another
independent witness Kuldeep Singh, has been given up as has been stated
in the status report. Statement of PW10, if perused in its entirety, clearly
.
reveals that deceased accused Babu Ram had boarded the bus in question
from Bajora, and at that time, he was carrying one blue bag, which he kept
on the rack. As per this witness, bail petitioner Tarun Kumar, boarded the
bus from Mandi and both the above named persons were sitting at seat
Nos.25 and 26. Though this witness admitted that bag lying on seat No. 24
was searched by the police and from that, commercial quantity of charas
was recovered, but he nowhere stated that police recovered Aadhar Card of
the bail petitioner from the jeans recovered from the bag alongwith charas.
Mr. Bhatnagar, learned Additional Advocate General while making this
Court to peruse statement of this witness in its entirety made serious
attempt to persuade this Court to agree with his contention that once this
witness admitted his signature on the seizure memo, whereby case property
was taken into possession, aforesaid statement, if any, of him that no
Aadhar Card was recovered from the jean pant is of no relevance, however,
this court finds no force in the aforesaid submission of him for the reason
that this witness specifically stated in his examination-in-chief that charas
was recovered in his presence from the blue bag kept on seat No. 24, but
however Aadhar Card of the accused Tarun was not recovered from the bag
Ext.P-1 in his presence. He admitted that sample seal Ext.PW9/A bears
his signature in red circle, but at no point of time, recovery memo with
.
regard to Aadhar Card allegedly recovered from the jeans of the bail
petitioner Tarun in the presence of this witness, ever came to be put to him
by the prosecution to confront him with his statement with regard to
recovery of Aadhar Card from the jean pant of the accused. Leaving
everything aside, this witness has categorically stated that accused Babu
Ram had boarded the bus from Bajora and he had blue bag in his back, if it
is so, it is not understood that how the bail petitioner could be made liable
for contraband allegedly recovered from the blue bag. No doubt, versions
putforth by the official witnesses cannot be brushed aside on account of
their being official witnesses, but definitely, version putforth by them
requires to be taken into consideration with utmost care and caution. In
the case at hand, independent witnesses associated by the police itself at
the time of the recovery have not supported the case of the prosecution.
Though learned Additional Advocate General argued that another witness of
recovery is yet to be examined, but such plea of him is contrary to the
status report filed before this Court wherein it has been categorically stated
that another independent witness namely Kuldeep Singh has been given
up.
6. Though case at hand is to be decided by the court below in the
.
totality of evidence collected on record by the prosecution, but keeping in
view the aforesaid glaring aspect of the matter, this court sees no reason to
let the bail petitioner incarcerate in jail for an indefinite period, especially
when he is already behind the bars for more than 4 ½ years. 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 and as such, this Court sees no reason to curtail
the freedom of the bail petitioner indefinitely during trial, especially when
statements of all the material prosecution witnesses stand recorded. No
doubt in the case at hand, rigors of Section 37 of the Act are attracted, but
careful perusal of Section 37 of the Act, nowhere reveals that there is a
complete bar/prohibition for the court to consider prayer for grant of
regular bail in cases involving the commercial quantity, rather in such like
cases, court after having afforded opportunity of being heard to the public
prosecutor can always proceed to grant bail, in case it has reason to
presume that the bail petitioner has been falsely implicated and in the
event of his enlargement on bail, he may not flee from justice. In the case
at hand, as has been taken note herein above, statement of independent
witness Jagtar Singh PW10, whereby he has stated that co-accused Babu
Ram had boarded the bus from Bajora and at that time, he had one blue
.
bag in his hand, creates suspicion about the correctness of the story of the
prosecution. 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.
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 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 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
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. 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).
12. 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.
13. 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. 5,00,000/- 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.
14. 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.
15. 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.
4th January, 2022 (Sandeep Sharma),
(manjit) Judge
