Surinder Pal vs Unknown
2022 Latest Caselaw 8606 HP

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          IN     THE   HIGH COURT OF HIMACHAL              PRADESH, SHIMLA

                         ON THE 18th DAY OF OCTOBER, 2022
                                      BEFORE




                                                                 .
                       HON'BLE MR. JUSTICE SANDEEP SHARMA





                  CRIMINAL MISC.PETITION (MAIN) No. 2043 of 2022
    Between:





    SHRI HARISH KUMAR AGED 33 YEARS, SON
    OF SHRI SURINDER PAL RESIDENT OF
    VILLAGE KATHALAG, POST OFFICE PADHIUN,
    TEHSIL SADAR, DISTRICT MANDI, HIMACHAL
    PRADESH THROUGH HIS FATHER SHRI





    SURINDER PAL, AGED 62 YEARS, S/O LEKH
    RAM RESIDENT OF VILLAGE KATHALAG,
    POST OFFICE PADHIUN, TEHSIL SADAR,
    DISTRICT MANDI, HIMACHAL PRADESH.
                       r                                                ....PETITIONER

    (BY MR. KULWANT SINGH GILL, ADVOCATE.)

    AND
    STATE OF HIMACHAL PRADESH THROUGH


    SECRETARY HOME.
                                                                     ....RESPONDENT
    (BY    MR.   NARENDER    GULERIA,




    ADDITIONAL ADVOCATE GENERAL WITH
    MR. SUNNY DHATWALIA, ASSISTANT





    ADVOCATE GENERAL).

    Whether approved for reporting?





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

Bail petitioner, namely Harish Kumar, who is behind the bars

since 22.8.2022, has approached this Court in the instant proceedings filed

under Section 439 of the Code of Criminal Procedure, praying therein to grant

regular bail in case FIR No.113 of 2021, dated 12.5.2021, registered at police

Station, Sadar, District Mandi, Himachal Pradesh under Section 21 of the

Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'Act').

.

2. Close scrutiny of status report as well as record made available to

this Court by the respondent-State pursuant to orders dated 9.9.2022 and

22.09.2022, reveals that on 12.05.2021, police after having received secret

information that bail petitioner indulges in sale and purchase of prohibited

drugs, constituted a raiding party and raided the house of the petitioner

alongwith independent witnesses and recovered 42 bottles of 100 ml each

containing "Codeine Phosphate". Since, no plausible explanation came to be

rendered on record by the petitioner qua the possession of aforesaid quantity

of drugs, police after completion of necessary codal formalities, proceeded to

lodge the FIR against the bail petitioner. Though, initially learned Judicial

Magistrate 1st Class, Court No.3, Mandi, District Mandi, H.P., vide order dated

13.05.2021 enlarged the bail petitioner on bail, but subsequently learned

Special Judge-II allowed the Cr. Revision No.3 of 2021, having been filed by

the respondent-State and set aside the order dated 13.05.2021 granting bail

passed by learned Judicial Magistrate 1st Class, Court No.3, Mandi, H.P.

3. Being aggrieved and dissatisfied with the aforesaid order,

petitioner-accused approached this Court by way of Cr.MMO No.340 of 2021,

which came to be allowed on 27.9.2021, reserving liberty to the respondent-

State to approach competent court of law, if so advised for cancellation of bail.

Respondent-State filed petition under Section 439(2) Cr.P.C for cancellation of

bail, which was allowed on 16.07.2022 and thereafter petitioner approached

this Court by way of petition bearing Cr.MMO No. 659 of 2022, but same was

disposed of as withdrawn with liberty to the petitioner to approach appropriate

court by way of appropriate proceedings. Since regular bail petition filed by the

petitioner before the Court below has been dismissed vide order 3.09.2022,

.

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

regular bail.

4. Mr. Narender Guleria, learned Additional Advocate General, while

fairly admitting the 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 view the gravity of offence alleged to have been

committed by him, he does not deserve any leniency. He submits that since

commercial quantity of contraband came to be recovered from the house of the

bail petitioner, rigours of Section 37 of the Act, are attracted and as such,

prayer made in the instant petition for grant of regular bail otherwise cannot be

accepted by this Court.

5. Having heard learned counsel representing the parties and

perused the material available on record, this Court finds that though case of

the respondent-State is that on the basis of the secret information, house of the

petitioner was raided and 42 bottles 100 ml each of "Codeine Phosphate" were

recovered from the bag kept in the house, but as per own case of the

prosecution, bail petitioner herein was not in the room, while recovery was

effected, rather he was standing in the court yard when raiding party visited the

spot. Aforesaid fact, as has been taken note hereinabove, gains significance

on account of the fact that the house from where allegedly contraband came to

be recovered was not in the name of the petitioner, rather same being joint

property is in the names of Sh. Surender Pal and Sh. Hem Raj, who happened

to be father and uncle of the present bail petitioner. No doubt, in the case at

hand, police on the basis of the secret information that the bail petitioner

indulges in the illegal trade of narcotics, raided the house, as detailed in the

.

status report, but since contraband never came to be recovered from the

conscious possession of the bail petitioner, rather from a room of a house

owned by the persons namely, Sh. Surender Pal and Sh. Hem Raj, it would be

too premature at this stage to conclude complicity, if any, of the bail petitioner in

the commission of offence punishable under Section 21 of the Act.

6. Since, it is not in dispute that at the time of alleged recovery, other

family members were also present in the house, apart from petitioner, and

house was in the name of persons namely, Sh. Surender Pal and Sh. Hem Raj,

prosecution is otherwise under obligation to prove by leading cogent and

convincing evidence that the contraband allegedly recovered from the house in

question was actually kept by the present bail petitioner. Jamabandi of the

house from where contraband came to be recovered, adduced on record,

clearly establishes factum with regard to ownership of the persons namely Sh.

Surender Pal and Sh. Hem Raj, qua the house in question. Since investigating

agency at the time of recovery, made no effort to investigate other persons

present in the house, while recovery was being effected coupled with the fact

that the house was in the names of persons other than the bail petitioner, there

appears to be no justification to let the bail petitioner incarcerate in jail for an

indefinite period during trial.

7. No doubt, commercial quantity of prohibited drug came to be

recovered from the possession of the bail petitioner and as such rigours of

Section 37 are attracted but having carefully read provisions contained under

section 37 of the Act, this Court is of the view that there is no complete bar/

prohibition to grant bail to the accused found in possession of commercial

quantity of contraband, rather court after having afforded due opportunity of

.

being heard to the public prosecutor can proceed to grant bail even in the

cases of commercial quantity, if it is satisfied that there are reasonable grounds

for believing that the accused is not guilty of offence under the act and

secondly he/she is not likely to commit any offence, while on bail.

8. Since in the case at hand recovery never came to be effected

from the conscious possession of the petitioner, rather from the house

occupied by other persons, as named hereinabove, this Court sees no reason

to curtail the freedom of the bail petitioner for indefinite period during trial.

9. Though, aforesaid aspects of the matter are to be considered and

decided by the court below in totality of facts and circumstances of the case,

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 indefinite period during

the trial, especially when guilty, if any, of him is yet to be proved in accordance

with law. 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.

10. 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 rrule 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

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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

11. The Hon'ble Apex Court in Sanjay Chandra versus Central Bu-

reau 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."

12. 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.

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13. The Apex Court in Prasanta Kumar Sarkar versus 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.

14. In view of above, bail petitioner has carved out a case for himself.

Consequently, present petition is allowed and bail petitioner is ordered to be

enlarged on bail, subject to his furnishing bail bonds in the sum of

Rs.1,00,000/- with one local surety in the like amount, 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.

(e) He shall surrender passport, if any, held by him.

15. It is clarified that if the petitioner misuses the liberty or violate any

of the conditions imposed upon him, the investigating agency shall be free to

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move this Court for cancellation of the bail.

16. 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.

17. Learned counsel for the petitioner is permitted to produce copy of

order downloaded from the High Court website before the trial Court, who shall

not insist for certified copy of the order, however, it may verify the order from

the High Court website or otherwise.

    18th October, 2022                                                (Sandeep Sharma),
          (shankar)                                                      Judge