Himachal Pradesh High Court

Ravinder Sharma vs State Of H.P on 22 November, 2023

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MPM No. 1992 of 2023 Reserved on: 08.11.2023 Date of Decision: 22.11.2023

    Ravinder Sharma                                                              ... Petitioner
                                           Versus
    State of H.P                                                                 ....Respondent





    Coram




                                                     of

Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the petitioner rt : Mr. Yashveer Singh Rathore, Advocate.

For the Respondent : Mr. R.P Singh, Deputy Advocate

General with SI Raj Kumar, PS Baijnath, District Kangra, H.P.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested for the commission of offences punishable under

Sections 20 and 29 of the Narcotics Drugs and Psychotropic

Substances Act (in short 'NDPS Act') registered vide FIR No. 188

of 2022 dated 5.12.2022 in Police Station Baijnath, District

Kangra. As per the prosecution version, charas weighing 1.66 kg

was recovered from the car being driven by the petitioner. There

is no evidence to connect the petitioner with the commission of

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

the crime. The police concocted a false story to harass the

petitioner. The petitioner is a respectable person in the society

and he has been apprehended based on the suspicion. The

petitioner is the sole bread earner of the family and he would

abide by all the terms and conditions, which may be imposed by

the Court. Therefore, it was prayed that the present petition be

allowed and the petitioner be released on bail.

2. The police filed a status report asserting that the

police found a vehicle bearing registration no. HP01K-4811 on rt 05.12.2022 at around 2:35 am at Aberi. The petitioner was found

to be the driver of the vehicle. Hemant Kumar was sitting in the

rear seat of the vehicle. The petitioner pushed a backpack

towards the rear side after seeing the police. Hemant Kumar

tried to conceal the backpack. The Police searched the backpack

and found 1.66 KGs of cannabis. The police arrested the

occupants and seized the contraband. As per the report of SFSL,

Junga, the substance was found to be of charas. The contraband

was disposed of by the Drug Disposal Committee on 24.2.2023.

The challan was prepared and presented before the Court. Four

witnesses have been examined out of 11 witnesses cited by the

prosecution. FIR no. 175 of 2009 dated 16.12.2009 was registered

against the petitioner for the commission of offences punishable

under Sections 376, 341 and 506 of IPC in which, the petitioner

was convicted by the High Court on 16.08.2016. FIR No.91 of 2012

dated 26.11.2012 was registered against the petitioner for the

commission of offences punishable under Sections 20, 29 of the

NDPS Act, in which, the petitioner was acquitted. FIR

no.202/2012 dated 29.12.2012 has been registered against the

petitioner in Police Station Bhuntar, which is pending before the

Court. The petitioner was convicted by the Court in FIR

of no.101/2013 dated 10.10.2013 for the commission of offences

punishable under Sections 363, 366, 376A and 506 of IPC and rt Section 4 of the Protection of Children from Sexual Offences Act.

3. I have heard Mr. Yashveer Singh Rathore, learned

counsel for the petitioner and Mr. R.P. Singh, learned Deputy

Advocate General, for the respondent/State.

4. Mr. Yashveer Singh, learned counsel for the

petitioner submitted that the petitioner is innocent and he was

falsely implicated. The petitioner is merely a driver of the

vehicle and cannot be said to be in possession of the articles

being carried by the passenger. Therefore, he prayed that the

present petition be allowed and the petitioner be released on

bail.

5. Mr. R.P. Singh, learned Deputy Advocate General for

respondent/State submitted that the petitioner was found in a

vehicle from which 1.66 KG of charas was recovered. The challan

has been presented before the Court and the trial is being

conducted. The petitioner was found in possession of the

commercial quantity and the rigours of Section 37 of the NDPS

Act apply to him. There is no reasonable ground to believe that

he has not committed the offence or he will not commit the

offence while on bail. Many cases have been registered against

of the petitioner. Hence, he prayed that the present petition be

dismissed.

6. rt I have given considerable thought to the rival

submissions at the bar and have gone through the records

carefully.

7. The parameters for granting bail were considered by

the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @

Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was

observed as under:-

"12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail

a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be

always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be

of considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the rt prosecution, in the normal course of events, the accused is entitled to have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken

into consideration for the grant of bail by the Courts has been explained in the following words:

"11. The law in regard to grant or refusal of bail is

very well settled. The court granting bail should exercise its discretion in a judicious manner and not

as a matter of course. Though at the stage of granting bail a detailed examination of evidence

and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri)

688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"

8. A similar view was taken in State of Haryana vs

of Dharamraj 2023 SCC Online 1085, wherein it was observed:

rt

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the

grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the

relevant principles were restated thus:

'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or

rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion

judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of

this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(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.'

9. It was submitted that the petitioner was not found in

of possession of the alleged contraband. He was merely a driver of

the vehicle and could not be fastened with liability. Reliance was rt placed upon the judgment of this Court in Ram Singh versus State

of H.P. (Cr. MPM No.321 of 2023) decided on 31.03.2023 in support

of this submission. A similar situation occurred in Madan Lal

versus State of H.P.(2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC

OnLine SC 874, wherein, the contraband was recovered from the

vehicle and it was held that all the occupants of the vehicle

would be in conscious possession of the contraband. It was

observed:

"19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act

which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

21. It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of

.

the nature of such possession, Section 20 is not attracted.

22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It

may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar

of Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the context of all statutes.

rt

23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or

intended.

24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756] possession in a

given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical

possession is given holds it subject to that power or control.

25. The word "possession" means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973

AC 498 : (1972) 2 WLR 1306 (HL)] ). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2 WLR 361 (QBD)] .)

26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section

54 where also presumption is available to be drawn from possession of illicit articles.

27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the

.

logical background of Sections 35 and 54 of the Act."

10. In Ram Singh's case, the Police had recovered the

contraband from the vehicle and this Court found that as per the

investigation, the contraband was recovered from the co-

of accused, who had already de-boarded the vehicle of the

petitioner. The possessor of the contraband was carrying it at rt the instance of the third accused and there was no involvement

of the petitioner in that case.

11. In the present case, the Police have come up with the

specific version that the petitioner had tried to push the bag

towards the rear side on seeing the police. The petitioner was

the driver of the vehicle. Had he not known about the contents of

the bag, he would not have pushed it towards the rear seat. His

conduct establishes at this stage that he was in possession of the

contraband.

12. It was submitted that the Police story is not true.

However, this is not to be seen at this stage and is to be seen

during the trial. The Court is only concerned with the allegations

made in the FIR and the material collected by the Police while

deciding whether the petitioner is entitled to bail or not.

13. It was submitted that the trial has been pending for

more than one year and the petitioner is entitled to bail because

his right to speedy trial is being violated. This submission

cannot be accepted. The petitioner was arrested on 05.12.2022

and the challan was prepared and presented before the Court on

of 11.04.2023 as per the status report. The prosecution has already

examined 4 witnesses out of 11 witnesses cited by it and the rt matter is listed for the remaining evidence on 29.12.2023. The

examination of 4 witnesses clearly shows that the trial is

proceeding without any delay. Therefore, the petitioner cannot

be enlarged on bail on the ground of delay.

14. The quantity of contraband/charas found in the

vehicle was 1.66 Kg, which is a commercial quantity. Section 37

of the NDPS Act provides that in an offence involving

commercial quantity, the Court should be satisfied that the

accused is not guilty of the commission of an offence and is not

likely to commit any offence while on bail. Section 37 of the

NDPS Act reads as under:

"37. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)--

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own

.

bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for

such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there

of are reasonable grounds for believing that he is not guilty of such an offence and that he is not likely to commit any offence while on rt bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the

limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

15. This Section was interpreted by the Hon'ble Supreme

Court in Union of India Versus Niyazuddin & Another (2018) 13

SCC 738 and it was held that in the absence of the satisfaction

that the accused is not guilty of an offence and he is not likely to

commit an offence while on bail, he cannot be released on bail.

It was observed:

"7. Section 37 of the NDPS Act contains special provisions with regard to the grant of bail in respect of certain offences enumerated under the said Section. They are :

(1) In the case of a person accused of an offence punishable under Section 19, (2) Under Section 24,

(3) Under Section 27A and (4) Of offences involving commercial quantity.

8. The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences

under Section 37 of the NDPS Act, in case, the court

proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal

requirements under the provisions of the Cr.P.C. or any other enactment.

(1) The court must be satisfied that there are

of reasonable grounds for believing that the person is not guilty of such offence;

(2) that person is not likely to commit any offence

16. rt while on bail."

This position was reiterated in State of Kerala Versus

Rajesh AIR 2020 SC 721 wherein it was held:

"19. This Court has laid down broad parameters to be

followed while considering the application for bail moved by the accused involved in offences under the NDPS Act. In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC

429, it has been elaborated as under:-

"7. It is to be borne in mind that the aforesaid

legislative mandate is required to be adhered to and followed. It should be borne in mind that in a

murder case, the accused commits the murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The reason may be the large stake and illegal profit involved. This Court,

dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier vs. Chief Secy., Union Territory of Goa, (1990) 1 SCC 95) as under:

.

24. With deep concern, we may point out that the

organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and

illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students

of of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming rt devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament

in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act

should not be released on bail during trial unless the mandatory conditions provided in Section 37,

namely,

(i) there are reasonable grounds for

believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent accused on bail. Instead of attempting to take a holistic view of the harmful socio-

economic consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should

implement the law in the spirit with which Parliament, after due deliberation, has amended."

20. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC but is also

subject to the limitation placed by Section 37 which

commences with the non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of

commission of an offence under the Act unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the

of application, and the second is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such an offence. If either of these two conditions is not satisfied, the ban for granting bail rt operates.

21. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The

reasonable belief contemplated in the provision requires the existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the

accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely

overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the

grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

17. A similar view was taken in Union of India v. Mohd.

Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC

OnLine SC 1237 wherein it was observed at page 110:

"21. Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24

or 27-A and also for offences involving a commercial quantity are:

(i) The Prosecutor must be given an opportunity to oppose the application for bail; and

(ii) There must exist "reasonable grounds to believe" that : (a) the person is not guilty of such an

.

offence; and (b) he is not likely to commit any

offence while on bail.

22. The standard prescribed for the grant of bail is

"reasonable ground to believe" that the person is not guilty of the offence. Interpreting the standard of "reasonable grounds to believe", a two-judge Bench of

of this Court in Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], held that : (SCC pp. 801-02, paras 7-8 & 10-11) rt "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes

substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to the

existence of such facts and circumstances as are sufficient in themselves to justify the recording of satisfaction that the accused is not guilty of the offence

charged.

8. The word "reasonable" has in law the prima facie

meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult

to give an exact definition of the word "reasonable".

'7. ... Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.'

[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd., (1989) 1 SCC 532] ]

***

10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis, it is a

question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater

of Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315] )

11. The court while considering the application for rt bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for

the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty

and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of

acquittal and recording a finding of not guilty."

(emphasis supplied)

23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting

bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed."

18. In the present case, there is no material to show that

the petitioner has not committed the offence punishable under

Section 20(b)(ii)(c) of the NDPS Act; rather the material on

record clearly shows that the petitioner was found in possession

of the commercial quantity of charas.

19. The status report shows that the petitioner was

involved in the commission of the offences and many FIRs have

been lodged against him.

20. It was held in Dataram Singh vs. State of U.P. (2018) 3

SCC 22 that while granting bail, a Judge must consider whether

of 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 rt general conduct. In Neeru Yadav vs. State of U.P. (2015) 16 SCC 422

many FIRs were registered against the accused. The bail was

granted to him by the Hon'ble High Court. Hon'ble Supreme

Court held that keeping in view the criminal history of the

accused, he was not entitled to bail. It was observed:

"9. On a perusal of the aforesaid list, it is quite vivid that respondent no.2 is a history sheeter and is involved in heinous offences. Having stated the facts and noting the

nature of involvement of the accused in the crimes in question, there can be no scintilla of the doubt to name him a "history sheeter"

................

15. This being the position of law, it is clear as the cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history- sheeter involved in the nature of crimes which we have reproduced hereinabove are not minor offences so that he is not to be retained in custody, but the crimes are of heinous

nature and such crimes, by no stretch of the imagination, can be regarded as jejune. Such cases do create thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kinds of accused persons to be at large and, therefore, the emphasis is on the exercise of

discretion judiciously and not in a whimsical manner.

21. The law regarding the relevance of the criminal

history of the accused while considering the bail application was

considered by this Court exhaustively in Prem Singh vs. State of

of H.P. 2020 (1) Shim. L.C. 476, wherein it was observed:

"9. In Ravinder Singh @ Ravi Pavar v. State of Gujarat, (2013) 12 SCC 446, SupremeCourt observed, rt "24. In para 5 of the rejoinder affidavit, the State has highlighted that A-2 is a "habitual

offender" and there are 22 cases pending against him in various police stations. It is also mentioned in the counter affidavit that during

the period while he was granted temporary bail by the High Court, he indulged in an offence of theft and a case was registered against him

vide I-C.R. No. 92 of 2011 under Section 379 of IPC by the Vasad Police Station for which he

was arrested on 10.08.2011 and later enlarged on bail. It is also brought to our notice that respondent A-2, while on regular bail, was

arrested on 13.09.2012 in Vadodara city in connection with Javaharnagar Police Station crime registered vide I-C.R. No. 94 of 2012 under Sections 407, 408 and 120B and later on he was released on bail.

25. Taking note of all these aspects, his antecedents, the gravity and nature of the offence, loss of human lives, the impact on the social fabric of the society, and his continuous involvement in criminal activities while on bail, we are satisfied that respondent (A-2)

does not deserve to continue to remain on bail."

10. In State of Maharashtra v. Pappu @ Suresh Budharmal Kalani, (2014) 11 SCC 244, the Supreme Court holds, "14. It is not in dispute that in spite of being

acquitted in some of the cases, still there are 15

cases in which a trial is pending against the respondent, out of which two cases are under

Sections 302 read with 120B, IPC. In the present case also, initially along with charges under Sections 302/120B, IPC offences punishable

of under TADA were also charged against the respondent but later on, the TADA charges were withdrawn. Though we are not inclined to rtgo into the matter in detail at present to interfere in the order passed by the High Court, taking into consideration the peculiar facts and

circumstances of the case, we are inclined to interfere and cancel the bail granted by the High Court."

11. In Chandrakeshwar Prasad @ Chandu Babu v. State

of Bihar, (2016) 9 SCC 443, the Supreme Court holds, "13. On a careful perusal of the records of the

case and considering all the aspects of the matter in question and having regard to the

proved charges in the concerned cases, and the charges pending adjudication against the respondent-accused and further balancing the

considerations of individual liberty and societal interest as well as the prescriptions and the perception of law regarding bail, it appears to us that the High Court has erred in granting bail to the respondent accused without taking into consideration the overall facts otherwise having a bearing on the exercise of its discretion on the issue.

14. Judged on the entire conspectus of the attendant facts and circumstances and considering the stage of the present case before the trial court where the charge sheet has

already been submitted, together with pending proceedings against the respondent-accused as on date, and his recorded antecedents in the various decisions of this Court, we are thus unable to sustain the impugned order of the High Court granting bail to him."

12. In Neeru Yadav v. State of U.P., (2016) 15 SCC 422,

the Supreme Court, rejected the bail granted by the High Court, by holding as follows,

"9. On a perusal of the aforesaid list, it is quite vivid that respondent No. 2 is a history-sheeter and is involved in heinous offences. Having

of stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to rt name him a "history-sheeter". The question, therefore, arises whether in these circumstances, should the High Court have

enlarged him on bail on the foundation of parity.

10. In Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598, it has been clearly laid down

that the grant of bail though involves the exercise of the discretionary power of the Court, such exercise of discretion has to be

made in a judicious manner and not as a matter of course. The heinous nature of crimes

warrants more caution as there is a greater chance of rejection of bail though, however,

dependent on the factual matrix of the matter. In the said case, reference was made to Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280, and thereafter the court proceeded to state the following principles:-

"(a) While granting bail the court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the

.

entire evidence establishing the guilt of

the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the

charge.

(d) Frivolity in prosecution should always

of be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, rt and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the

accused is entitled to an order of bail."

11. It is a well-settled principle of law that while dealing with an application for a grant of bail, it is the duty of the Court to take into

consideration certain factors and they basically are, (i) the nature of the accusation and the severity of punishment in cases of conviction

and the nature of supporting evidence, (ii) reasonable apprehension of tampering with

the witnesses for the apprehension of threat to the complainant, and (iii) Prima facie

satisfaction of the court in support of the charge. [See Chaman Lal v. State of U.P., (2004) 7 SCC 525]

12. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, while dealing with the court's role to interfere with the power of the High Court to grant bail to the accused, the Court observed that it is to be seen that the High Court has exercised this discretion judiciously, cautiously and strictly in compliance with the basic principles laid down

in a catena of judgments on that point. The Court proceeded to enumerate the factors: -

"9. ... among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:

.

(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

of event of conviction;

(iv) the danger of the accused rt 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."

13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that

a crime though committed against an individual, in all cases does not retain an individual character. It, on occasion and in certain offences, accentuates and causes harm to society. The victim may be an individual, but in the ultimate eventuate, it is the society, which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be

a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus: -

.

"Men are qualified for civil liberty, in exact

proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above

their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in

of proportion, as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon rt will and appetite be placed somewhere and the less of it there is within, the more there

must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their

passions forge their fetters [Alfred Howard, The Beauties of Burke (T. Davison, London) 109]."

22. In Krishna @ Kiran Versus State of H.P. Cr. MP (Main)

no. 2212 of 2019, decided on 06.01.2020, this Court found that the

petitioner was earlier involved in the possession of Ganja and

was not held entitled to bail. Similarly, in the State of Bihar

Versus Rajballav Prasad (2017) 2 SCC 178, the Hon'ble Supreme

Court held that when the petitioner was involved in the

commission of similar offences, it was a relevant consideration.

The fact that the criminal antecedents of the accused are

relevant was also laid down in Arnav Manoranjan Goswami Versus

State of Maharashtra AIR 2021 SC 1 wherein it was held:

"57. While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must

.

consider the settled factors, which emerge from the

precedents of this Court. These factors can be summarized as follows:

(i) The nature of the alleged offence, the nature of

the accusation and the severity of the punishment in the case of a conviction;

of

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the rt accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the

offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the

State and other similar considerations.

58. These principles have evolved over a period of time and emanate from the following (among other) decisions:

Prahlad Singh Bhati vs. NCT, Delhi, (2001) 4 SCC 280; Ram

Govind Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598; State of UP vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14 SCC 496; Sanjay Chandra vs. CBI, (2012) 1 SCC 40; and P. Chidambaram vs. Central Bureau of Investigation[Criminal Appeal No. 1605 of 2019 decided on 22 October 2019].

23. It was held in State of Maharashtra v. Sitaram Popat

Vetal, (2004) 7 SCC 521: 2004 SCC (Cri) 1971: 2004 SCC OnLine SC

932 that antecedents of the petitioner cannot be ignored while

considering his bail application. It was held at page 524:

"9. The High Court has lightly brushed aside the factum of recovery of the weapons and identification at the test

.

identification parade. Its conclusion that political rivalry

has a double-edged effect was based on surmises without any material before it to show that a false case had been foisted because of political rivalry. Further, the

antecedents of the present respondents though noticed were also lightly brushed aside on the ground that they were not of the recent past. Even though criminal

of antecedents are always not determinative of the question whether bail is to be granted, yet their relevance cannot be totally ignored. It was submitted that the accused Sitaram Vetal is not appearing in court on the date fixed.

rt If that is really so, it is open to the trial court to take such action as is available to be taken in law."

24. A similar view was taken in Ramesh Bhavan Rathod v.

Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230: (2021) 2 SCC

(Cri) 722: 2021 SCC OnLine SC 335, wherein it was held at page

250:-

"36. There is another aspect of this batch of cases which it is necessary to note. In the order of the High Court

dated 22-10-2020 [SiddhrajsinhBhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] granting bail to Sidhdhrajsinh (A-13), there was a reference to the submission of the Public Prosecutor to the criminal antecedents of A-13 bearing on previous FIRs registered against him in 2017 and 2019. This aspect bearing on the criminal antecedents of A-13 has not been considered in the reasons which have been adduced by the Single Judge. In Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446 : (2012) 3 SCC (Cri) 1172], this Court has held that criminal antecedents of the accused must be weighed for the purpose of granting bail.

That apart, it is important to note that the ground on which A-13 was granted bail is that in the subsequent statement dated 3-6-2020, the overt act which was attributed in the FIR was found to be missing. Having said this, the learned Judge observed that the order shall not be treated as a precedent to claim bail on the basis of

.

parity in any other case.

xxx

40. However having said that, in the case at hand, it is

manifestly incorrect on the part of the High Court to have granted bail to Respondent 2/accused without taking into consideration the relevant facts and circumstances and

of appropriate evidence which proved that Respondent 2/accused has been charged with a serious offence.

41. Grant of bail to Respondent 2/accused only on the basis of parity shows that the impugned order passed by rt the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not

taken into consideration the criminal history of Respondent 2/accused, the nature of the crime, material evidence available, involvement of Respondent 2/accused in the said crime and recovery of weapon from his

possession."

25. Similar is the judgment passed in Sunil Kumar v. State

of Bihar, (2022) 3 SCC 245: (2022) 1 SCC (Cri) 603: 2022 SCC OnLine

SC 88, wherein it was observed at page 252:-

"16. Even the High Court has also not at all considered the criminal antecedents of Respondent 2-accused. Though it was pointed out on behalf of the informant that the accused is involved in two cases and that the appellant (informant) was restrained from proceeding further in earlier cases pending against the accused, the High Court has simply brushed aside the same and has not considered the same at all. The High Court has noted the submission on behalf of the accused that one other accused -- Shashi Bhushan Bhagat has been released on bail. However, the High Court has not at all considered whether the case of Shashi Bhushan Bhagat is similar to

that of Respondent 2-accused Ramawatar Bhagat or not. It appears that the High Court has passed the order mechanically and in a most perfunctory manner."

26. This position was reiterated in Manoj Kumar Khokhar

v. State of Rajasthan, (2022) 3 SCC 501: 2022 SCC OnLine SC 30 at

page 513, wherein it was observed:-

"25. Another factor which should guide the court's

decision in deciding a bail application is the period of custody. However, as noted in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446:

of (2012) 3 SCC (Cri) 1172], the period of custody has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents of the accused, if any. Further, the circumstances which may rt justify the grant of bail are to be considered in the larger context of the societal concern involved in releasing an

accused, in juxtaposition to the individual liberty of the accused seeking bail. "

27. Similar is the judgment in Brijmani Devi v. Pappu

Kumar, (2022) 4 SCC 497: (2022) 2 SCC (Cri) 170: 2021 SCC OnLine

SC 1280, wherein, it was observed at page 505:-

"21. In GudikantiNarasimhulu [GudikantiNarasimhulu v. Public Prosecutor, A.P. High Court, (1978) 1 SCC 240: 1978 SCC (Cri) 115], Krishna Iyer, J., while elaborating on the

content and meaning of Article 21 of the Constitution of India, has also elaborated the factors that have to be considered while granting bail which are extracted as under : (SCC p. 244, paras 7-9) "7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable if convicted or conviction is confirmed also bears upon the issue.

8. Another relevant factor is as to whether the course of justice would be thwarted by him who

seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin: The Criminal Prosecution in England, (London) 1960, p. 75 -- Mod. Law Rev. ibid., p. 54]

9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant

.

interfering with witnesses for the prosecution or

otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is

applying for bail to find whether he has a bad record -- particularly a record which suggests that he is likely to commit serious offences while on

of bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. rt Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an

exercise in irrelevance."

22. Prahlad Singh Bhati v. State (NCT of Delhi) [Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001

SCC (Cri) 674] is a case wherein this Court proceeded to state the following principles which are to be considered while granting bail:

"4. ... (a) While granting bail the court has to keep in mind not only the nature of the accusations, but

the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of

genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." (Ram Govind Upadhyay case [Ram Govind Upadhyay v. Sudarshan

.

Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688], SCC p.

602, para 4)

23. This Court in Ram Govind Upadhyay v. Sudarshan Singh [Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC

598: 2002 SCC (Cri) 688], speaking through Banerjee, J., observed as under : (SCC p. 602, para 3)

of "3. Grant of bail though being a discretionary order

-- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason rt cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the

contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself

cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the

grant of bail. The nature of the offence is one of the basic considerations for the grant of bail -- the

more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter."

24. In Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977], this Court observed in para 11 as under :

(SCC pp. 535-36) "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to

indicate in such orders reasons for prima facie concluding why bail was being granted particularly, where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to

.

consider among other circumstances, the following

factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature

of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the

of complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [Ram Govind rt Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598:

2002 SCC (Cri) 688] and Puran v. Rambilas [Puran

v. Rambilas, (2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)"

25. Gobarbhai Naranbhai Singala v. State of Gujarat

[Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 775 : (2008) 2 SCC (Cri) 743], is a case which concerns the cancellation of bail by this Court in a petition filed

under Article 136 of the Constitution of India. In the said case reliance was placed on Panchanan Mishra v. Digambar

Mishra [Panchanan Mishra v. Digambar Mishra, (2005) 3 SCC 143: 2005 SCC (Cri) 660] wherein in para 13 it was observed as under : (Panchanan Mishra case [Panchanan

Mishra v. Digambar Mishra, (2005) 3 SCC 143: 2005 SCC (Cri) 660], SCC pp. 147-48) "13. ... The object underlying the cancellation of bail is to protect a fair trial and secure justice being done to society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime ... It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge

in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."

26. Further on referring to the State of U.P. v. Amarmani Tripathi [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC

21: 2005 SCC (Cri) 1960 (2)], this Court in Gobarbhai

Naranbhai Singala case [Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 775 : (2008) 2 SCC (Cri) 743] noted the facts of the case therein to the effect that the

respondent therein had been named in ten other criminal cases in the last 25 years or so, out of which five cases were under Section 307 IPC for attempt to murder and

of another under Section 302 IPC for committing murder. That in most of the cases he was acquitted for want of sufficient evidence. Without saying anything further this Court noted that the High Court in the said case rt completely ignored the general principle for grant of bail in a heinous crime of commission of murder in which the

sentence if convicted, is death or life imprisonment.

28. This Court in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446: (2012) 3

SCC (Cri) 1172], observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and

the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that societal

concern has to be kept in view in juxtaposition to individual liberty, was underlined.

29. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2016) 15 SCC 422: (2016) 4 SCC (Cri) 647], after referring to a catena of judgments of this Court on the consideration of factors for grant of bail observed through Dipak Misra, J. (as His Lordship then was) in paras 15 and 18 as under : (SCC pp. 429-30) "15. This being the position of law, it is clear as a cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced

hereinabove are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create thunder and lightning having the effect potentiality of torrential rain in an analytical mind.

The law expects the judiciary to be alert while

admitting these kinds of accused persons to be at large and, therefore, the emphasis is on the exercise of discretion judiciously and not in a

whimsical manner.

***

18. Before parting with the case, we may repeat with

of profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many rt relevant factors have not been taken into consideration which includes the criminal

antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order [Budhpal v. State of U.P., 2014 SCC OnLine All 14815]."

30. In Anil Kumar Yadav v. State (NCT of Delhi) [Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129: (2018) 3

SCC (Cri) 425], this Court has spelt out some of the significant considerations which must be placed in the

balance in deciding whether to grant bail : (SCC p. 138, para 17) "17. While granting bail, the relevant

considerations are (i) the nature of seriousness of the offence; (ii) the character of the evidence and circumstances which are peculiar to the accused; and (iii) the likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard-and-fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court."

28. It was observed in Jaibunisha v. Meharban, (2022) 5

SCC 465: 2022 SCC OnLine SC 58 that the period of custody has to

be weighed with criminal antecedent. It was observed at page

478:-

.

"21.6. Another factor which should guide the court's decision in deciding a bail application is the period of

custody. However, as noted in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446: (2012) 3 SCC (Cri) 1172], the period of custody has to be

of weighed simultaneously with the totality of the circumstances and the criminal antecedents of the accused, if any. Further, the circumstances which may justify the grant of bail are to be considered in the larger rt context of the societal concern involved in releasing an accused, in juxtaposition to individual liberty of the

accused seeking bail."

29. It was held in Bharwad Santoshbhai Sondabhai v. State

of Gujarat, 2023 SCC OnLine SC 1092 that bail cannot be granted to

a person having criminal antecedents. It was observed:

"12. For the reasons noted above, we are of the firm opinion that respondent No. 2 was not entitled to any

relief in the instant case. Respondent No. 2 had remained in custody for barely six months (23rd September 2021 to

18th February 2022) before he was released on bail in respect of a serious offence under Section 302 of the IPC. His antecedents also indicate his propensity towards committing crime. Accordingly, the impugned order dated 18th February 2022, is quashed and set aside and respondent No. 2 is directed to surrender forthwith before the trial Court."

30. Therefore, it is apparent from the judgment of this

Court as well as the judgments of the Hon'ble Supreme Court,

that the criminal antecedents are important factors which

cannot be ignored while deciding the bail application. In the

present case, the petitioner was found to be involved in the

commission of similar offences and is not entitled to bail.

Final Order:

31. In view of the above, the present petition fails and

the same is dismissed.

32. The observations made hereinbefore shall remain

of confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.