Himachal Pradesh High Court

Abhishek Son Of Sh. Rajesh Kumar vs Unknown on 15 November, 2022

Bench: Sandeep Sharma

THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 15TH DAY OF NOVEMBER, 2022 BEFORE HON'BLE MR. JUSTICE SANDEEP SHARMA

CRIMINAL MISC. PETITION(MAIN) NO. 2368 OF 2022

Between:-

SAURABH LAKHAN PAL SON OF SH. RAJESH KUMAR

AGE ABOUT 19 YEARS, RESIDENT OF VILLAGE JADRANA, POST OFFICE GHUMARLI TEHSIL BADSAR, DISTRICT HAMIRPUR, H.P.

THROUGH HIS BROTHER

ABHISHEK SON OF SH. RAJESH KUMAR AGE ABOUT 22 YEARS, RESIDENT OF VILLAGE JADRANA, POST OFFICE GHUMARLI, TEHSIL BADSAR, DISTRICT HAMIRPUR, H.P PETITIONER

(BY MR. ANIRUDH SHARMA, ADVOCATE)

AND

STATE OF H.P.

RESPONDENT (BY MR. SUDHIR BHATNAGAR,

ADDITIONAL ADVOCATE GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)

ASI DEVINDER SINGH, POLICE STATION DHARAMPUR,

DISTRICT SOLAN, HIMACHAL PRADESH

Whether approved for reporting:

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

OR D ER

Bail petitioner-Saurabh Lakhan Pal, who is behind the bars

since 31.7.2022, has approached this court in the instant proceedings filed

under S.439 CrPC, for grant of regular bail in case FIR 123, dated 31.7.2022

registered at Police Station Dharampur, District Solan, Himachal Pradesh

under Ss. 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act.

2. Pursuant to notices issued in terms of order 1.11.2022,

respondent State has filed status report and Investigating Officer has come

present with record. Record perused and returned.

3. Close scrutiny of record/status report, reveals that on 31.7.2022

police after having received secret information stopped motor cycle bearing

registration No. PB65T-0267 Duke, coming from Solan to Dharampur, for

checking. Police allegedly after having associated independent witnesses,

recovered 260 grams of Charas from the rucksack of persons riding the motor

cycle, namely Saurabh Lakhan Pal and Akshay Thakur. Since no plausible

explanation came to be rendered on record, qua possession of aforesaid

quantity of contraband, police after completion of necessary codal formalities,

arrested the aforesaid persons. Co-accused Akshay Thakur stands already

enlarged on bail and present bail petitioner is behind the bars since

31.7.2022. Though, prior to filing of the petition at hand, bail petitioner

approached this court for grant of bail, however, same was dismissed as

withdrawn. Now since Challan stands filed and nothing remains to be

recovered from bail petitioner, he has approached this Court in the instant

proceedings, for grant of regular bail.

4. While fairly admitting factum with regard to filing Challan in the

competent court of law, learned Additional Advocate General contends 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. Mr. Bhatnagar, further submits that the material collected on record

by Investigating Agency clearly reveals that bail petitioner has been indulging

in such activities in past also and one case under Narcotic Drugs and

Psychotropic Substances Act, already stands registered against him and at

this stage, 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

material available on record, this court finds that 260 grams of Charas was

recovered from the rucksack being carried by persons riding motor cycle in

question. Since an intermediate quantity of contraband was recovered from

rucksack in the present case, as such, it cannot be accepted that the bail

petitioner herein has been falsely implicated, however, taking note of the fact

that two persons were riding the motor cycle, this court finds force in the

submission of learned counsel for the petitioner that it yet remains to be

established that the bag belongs to the petitioner or the other accused, who

otherwise stands enlarged on bail.

6. Since an intermediate quantity of contraband came to be

recovered from the bag allegedly recovered by police from conscious

possession of bail petitioner, rigours of S.37 of the Act are not attracted,

especially when the bail petitioner is behind the bars for more than three

months and another person riding motor cycle already stands enlarged on

bail. No doubt, one case in past stands registered against the bail petitioner

but that cannot be made a ground to reject bail of the petitioner at this stage,

especially when no material has been placed on record by prosecution, to

suggest that after lodging of present FIR against the bail petitioner, application

if any came to be filed by the prosecution for cancellation of bail granted in

earlier case registered against the bail petitioner.

7. Though, the case at hand is to be decided by learned trial Court

in the totality of evidence led on record by Investigating Agency but keeping in

view the aforesaid glaring aspects of matter, this court sees no reason to let

the bail petitioner incarcerate in jail for an indefinite period during trial.

Though, learned Additional Advocate General attempted to carve out a case

that the bail petitioner is a drug peddler but there is no such evidence

available on record, as such, this court is of the view that no fruitful purpose

would be served by keeping the bail petitioner behind the bars for an indefinite

period during trial, rather, he is required to be sent to a rehabilitation centre,

so that he is brought back into the mainstream of the society.

8. 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.

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 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.

10. 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.

11. 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.

12. 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.

13. 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.50,000 with one local 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