Om Parkash vs State Of Himachal Pradesh
2022 Latest Caselaw 9499 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




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                        Criminal Misc. Petition (Main) No. 2001 of 2022
                                          Date of Decision: 18.11.2022
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    Om Parkash
                                                                 .........Petitioner.
                                           Versus
    State of Himachal Pradesh
                                                                 .......Respondent





    Coram

    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting?

    For the Petitioner:       Mr. Bhupinder Singh Ahuja, Advocate.

    For the respondent:       Mr. Sudhir Bhatnagar and Mr. Narinder
                              Guleria, Additional Advocates General.
    ___________________________________________________________________________


    Sandeep Sharma, J. (Oral)

By way of present petition filed under S. 439 CrPC, bail

petitioner namely Om Parkash has approached this Court, for grant of

regular bail in FIR No. 376/19, dated 27.12.2019 under Ss. 8, 20, 25

and 29 of the Narcotic Drugs and Psychotropic Substances Act and S.

181 of Motor Vehicles Act, registered at Police Station Sadar, District

Kullu, Himachal Pradesh.

2. Pursuant to previous orders, Respondent-State has filed

the status report, perusal whereof reveals that on 27.12.2019 at 1.30

pm, vehicle bearing registration No. HP34D-4317, being driven by the

petitioner coming from Bhunter side was stopped for checking by

police near Kota Dhar. Since driver and other occupants of the car got

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perplexed on seeing the police, police deemed it necessary to effect

search of vehicle and the occupants, as such, after associating

independent witnesses, effected search of the vehicle and its

occupants and allegedly recovered one rucksack kept under front seat,

containing 1.695 kg Charas. Since occupants of the car were unable to

render proper explanation qua the possession of the aforesaid

commercial quantity of the contraband, police after completion of

necessary codal formalities lodged FIR and arrested both the accused

and since then, present bail petitioner is behind the bars, whereas co-

accused namely Madan Lal, who was also travelling in the vehicle,

already stands enlarged on bail vide order dated 4.11.2022, passed by

this court in Cr.MPM No. 2273 of 2022. Since Challan stands filed in

the competent Court of law and nothing remains to be recovered from

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

proceedings, for grant of regular bail.

3. It has been averred in the petition that for the last two

years and eleven months, petitioner is behind bars and till date only

four prosecution witnesses have been examined, and as such,

petitioner deserves to be enlarged on bail on the ground that there is

every likelihood of delay in conclusion of trial. Learned counsel for the

petitioner, while inviting attention of this court to order dated

4.11.2022, passed by this Court in Cr.MP(M) No. 2273 of 2022,

whereby co-accused Madan Lal, came to be enlarged on bail,

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contended that this Court having taken note of various judgments

passed by Hon'ble Apex Court has already granted bail to co-accused

Madan Lal on the ground of delay in trial and as such, similar

treatment is also required to be given to the present bail petitioner.

4. Mr. Narinder Guleria, learned Additional Advocate

General, while fairly acknowledging the factum with regard to filing of

Challan in the competent court of law, contends that though nothing

remains to be recovered from the bail petitioner, but keeping in view

gravity of the offence alleged to have been committed by him, he does

not deserve any leniency and his prayer for grant of bail, deserves

outright rejection. While fairly admitting the fact that till date, only

four prosecution witnesses have been examined, learned Additional

Advocate General submits that since the bail petitioner has indulged

in a heinous crime having an adverse impact on the society, it may not

be in the interest of justice to enlarge him on bail, because, in that

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

activities again, as such, his prayer for grant of bail deserves outright

rejection.

5. Having heard learned counsel for the parties and perused

material available on record this court finds that commercial quantity

of contraband was allegedly recovered from the vehicle being driven by

the present bail petitioner in the presence of the independent

witnesses and as such, this Court finds it difficult to agree with

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learned counsel appearing for the petitioner that his client has been

falsely implicated, however having taken note of the fact that the bail

petitioner is behind bars for two years and eleven months and ten

prosecution witnesses remain to be examined, this court has reasons

to believe that considerable time is still likely to be consumed in

conclusion of the trial and it may not be in the interest of justice to

allow the bail petitioner to remain behind the bars for an indefinite

period, as it would definitely amount to pre-trial conviction of the

petitioner.

6. 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.

7. 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

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commercial quantity of Tramadol, on the ground of delay in conclusion

of trial.

8. 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.

9. Learned Counsel appearing for the petitioner, to

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

order date 12.10.20220 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.

10. Learned Additional Advocate General, referring to

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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.

11. 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.

12. 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.

13. No doubt quantity of contraband allegedly recovered from

the bail petitioner is commercial and as such, rigours of S. 37 of the

Act are attracted but bare perusal of provisions contained under S.37

nowhere suggests that no bail can be granted in cases involving

commercial quantity rather in such cases, court after affording due

opportunity of hearing to public prosecutor can proceed to grant bail,

if it is satisfied that the bail petitioner has been falsely implicated and

in the event of bail he will not indulge in such activities again.

14. In the instant case, bail petitioner is behind bars for two

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years and eleven months and till date, only four prosecution witnesses

have been examined and as such, there are very bleak chances of

conclusion of the same in near future, as such, there appears to be no

justification to keep the bail petitioner behind the bars for an

indefinite period, during trial, keeping in view the fact that the bail

petitioner is a first offender and there is no other case against him,

apart from the present one.

15. 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.

16. 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 cannot 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.

17. 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

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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.

18. 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.

19. 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.

20. 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

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Rs.1.00 lac 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

(d) He shall not leave the territory of India without the prior permission of the Court.

21. 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.

22. 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 petition alone. The petition stands

accordingly disposed of.

23. A downloaded copy of this order shall be accepted by the

learned trial Court, while accepting the bail bonds from the petitioner

and in case, said court intends to ascertain the veracity of the

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downloaded copy of order presented to it, same may be ascertained

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from the official website of this Court.

    November 18, 2022                                      (Sandeep Sharma),





    manjit                                                      Judge




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