Bittu Singh vs Unknown
2022 Latest Caselaw 3868 HP

    IN    THE      HIGH     COURT        OF    HIMACHAL           PRADESH,            SHIMLA




                                                                       .
                           ON THE 27th DAY OF MAY, 2022





                                   BEFORE
                     HON'BLE MR. JUSTICE SANDEEP SHARMA





               CRIMINAL MISC. PETITION (MAIN) No. 259 OF 2022
          Between:

          BITTU SINGH,
          AGE 24 YEARS,





          LATE SH. GERNAL SINGH,
          R/O VILLAGE TARKHAN MAZRA,
          PO TANDHAL,
          TEHSIL & PO SAMANA,
          DISTRICT BADIARA (PUNJAB)
                         r                                                 ....PETITIONER

          (BY MR. SANJEEV BHUSHAN,
          SENIOR ADVOCATE WITH
          MR. MAAN SINGH, ADVOCATE)


          AND


          STATE OF HIMACHAL PRADESH,




                                                                          ....RESPONDENT
          (MR. SUDHIR BHATNAGAR,





          ADDITIONAL ADVOCATE GENERAL)

    Whether approved for reporting?. Yes.





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

By way of instant petition filed under Section 439 of CRPC,

prayer has been made by the bail petitioner namely Bittu, for grant of

regular bail in case FIR No. 116 of 2019 dated 10.12.2019, under Sections

15, 25 and 29 of the NDPS Act, registered at PS Banjar, District Kullu, H.P.

.

Respondent-State has filed the status report in terms of order dated

13.5.2022.

2. Perusal of status report/record reveals that on 9.12.2019,

police after having received secrete information laid Naka near Banjar road

and allegedly signaled the car bearing registration No. HR26AU1919 to

stop, but occupants of the car after having seen the police fled away from

the spot leaving the aforesaid car on the spot. Police checked the car in

question in the presence of the independent witnesses and allegedly

recovered 61.80 kgs of poppy straw. After completion of necessary codal

formalities, police lodged FIR detailed herein above and thereafter on the

basis of registration of the car involved in the aforesaid incident

apprehended person namely Kuldeep Singh, who allegedly disclosed to the

police that car was sold by him to present bail petitioner Bittu. The above

named person further disclosed to the police that on 9.12.2019, he

alongwith present bail petitioner Bittu had gone to Banjar to purchase

poppy straw for consideration of Rs. 50,000/-. On the basis of aforesaid

disclosure made by the co-accused Kuldeep Aingh, petitioner herein came

to be named in the FIR alongwith other co-accused. Though co-accused

Kuldeep Singh and Roop Singh were arrested in the month of January,

2020, whereas present bail petitioner absconded and could only be

.

apprehended on 9.11.2021, after filing of the challan in the competent

court of law and since then he is behind bars. Since challan stands filed in

the competent court of law and nothing remains to be recovered from him,

he has approached this Court in the instant proceedings for grant of

regular bail.

3. 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 though nothing remains to be

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

alleged to have been committed by the bail petitioner, he does not deserve

any leniency. Mr. Bhatnagar, further submits that there is overwhelming

evidence available on record suggestive of the fact that when car in

question was stopped for checking by the police, bail petitioner alongwith

co-accused Kuldeep Singh was travelling in the car, but they after seeing

the police fled away from the spot. While making this Court to peruse the

status report, learned Additional Advocate General, submits that three

cases; two under the NDPS Act and one under Excise Act, already stand

registered against the petitioner in the past and as such, it may not be in

the interest of justice to enlarge him on bail because in the event of his

being enlarged on bail, he may not only flee from justice but may again

.

indulge in these activities.

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

material available on record, this Court finds that at the time of checking of

car bearing registration No. HR26AU1919, none was found sitting there,

rather as per case of the prosecution, occupants of the car after having

seen the police fled away from the spot. It is only on the basis of

registration number of the car in question, co-accused Kuldeep Singh was

arrested, who during investigation disclosed to the police that he alongwith

present bail petitioner had gone to Banjar on 9.12.2019, to purchase

poppy straw for a consideration of Rs. 50,000/-. Co-accused Kuldeep

though disclosed to the police that vehicle was sold by him to the present

bail petitioner Bittu, but status report nowhere suggests that effort, if any,

ever came to be made at the behest of the investigating agency to verify the

aforesaid factum. Co-accused Roop Singh, from whom allegedly

contraband was purchased by Kuldeep Singh and present bail petitioner,

disclosed to the police that he had prior acquaintance with co-accused

Kuldeep Singh and he had talked with him with regard to sale of poppy

straws. He also disclosed to the police that on 9.12.2019, he had called the

co-accused Kuldeep Singh for purchase of poppy straw and at that time,

present petitioner was also present. Though as per the status report, co-

.

accused Kuldeep Singh disclosed that at the time of purchase of poppy

straw from co-accused, Roop Singh and present bail petitioner were also

present, but such statement, if any, made by the co-accused to the police

cannot be made basis to conclude complicity, if any, of the bail petitioner in

the alleged commission of crime, rather such fact is required to be proved

in accordance with law by leading cogent and convincing evidence. Since

co-accused Kuldeep Singh never came to be apprehended on the spot by

the police alongwith the contraband, it may be too premature, at this stage,

to conclude the involvement of the present bail petitioner in the case whose

name otherwise came to be named in the FIR on the basis of statement

made by the co-accused Kuldeep.

5. Recently Hon'le Apex Court in case titled State by (NCB)

Bengaluru v. Pallulabid Ahmad Arimutta and Anr, Special Leave to

Appeal (Crl) No. 1569 of 2021 decided on 10.1.2022, while placing reliance

upon its earlier judgment passed in Tofan Singh v. State of Tamil Nadu

(2021) 4 SCC 1, held that a confessional statement recorded under Section

67 of the NDPS Act, will remain inadmissible in the trial of an offence under

the Act. Having taken note of the law laid down in the aforesaid judgment,

Hon'ble Apex Court upheld the order passed by the High Court of

Karnataka granting bail to the accused arrested by the petitioner NCB on

.

the basis of confessional/voluntary statement of the co-accused under

Section 67 of the NDPS Act. Apart from above, Hon'ble Apex Court in the

aforesaid judgment has held that CDR details of some of the accused or the

allegations of tempering of evidence on the part of the respondents is an

aspect that will be examined at the stage of the trial.

6. True, it is that in the case at hand, contraband allegedly came

to be recovered from the car owned by the present bail petitioner is of

commercial quantity and as such rigours of Section 37 of the Act are

attracted. However, careful perusal of Section 37 nowhere suggests that

court considering prayer for grant of bail in a case involving commercial

quantity is completely estopped from granting bail, rather in such like

cases, notice is required to be issued to the Public Prosecutor before

considering prayer for grant of bail. After having heard public Prosecutor, if

court is satisfied that there are reasonable grounds to believe that person

seeking bail is not guilty of such offence and he is not likely to commit any

offence during bail, it can proceed to grant bail. In the case at hand, none

of the accused named in the FIR including the present bail petitioner ever

came to be apprehended on the spot while contraband was allegedly

recovered by the police from the car in question. Bail petitioner herein only

came to be named in the FIR on the basis of statement made by co-accused

.

Kuldeep and Roop Singh that on 9.12.2019, present bail petitioner had also

gone to the Banjar for purchasing poppy straw, but as has been discussed

herein above, statement made by the co-accused to the police under

Section 67 of the Act may not be admissible as such, prayer made by the

petitioner for grant of bail deserves to be allowed, especially, when his guilt

is yet to be determined in the totality of evidence collected on record by the

investigating agency. Contraband involved in the case at hand never came

to be recovered from the exclusive and conscious possession of the

petitioner, rather same was recovered from the car, occupants whereof had

allegedly fled away from the spot and no one identified them.

7. Hon'ble Apex Court as well as this Court have held in a catena

of judgments that a person is deemed to be innocent, till the time his/her

guilt is proved in accordance with law, as such, there is no justification to

allow bail petitioner incarcerate in jail for an indefinite period during trial,

especially when he has already suffered for more than six months.

Apprehension expressed by learned Additional Advocate General that in the

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

be best met by putting the bail petitioner to stringent conditions.

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. See: Sanjay Chandra versus Central

Bureau of Investigation (2012)1 Supreme Court Cases 49, Manoranjana

Sinh Alias Gupta versus CBI 2017 (5) SCC 218, and Prasanta Kumar

Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496.

9. 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.

10. 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 one local surety 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.

11. 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.

12. 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.

    27th May, 2022                                   ( Sandeep Sharma ),
          (manjit)                                         Judge