Sunil Thakur vs State Of Himachal Pradesh
2023 Latest Caselaw 13589 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No. 809 of 2023

Reserved on: 08.09.2023 Date of Decision: 14.09.2023 _________________________________________________

Sunil Thakur ....Petitioner Versus State of Himachal Pradesh

...Respondent _________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting?1

________________________________________________ For the petitioner: Mr. Bhupinder Singh Ahuja, Advocate.

    For the respondent:                             Mr. Raj Kumar Negi,
                                                    Additional  Advocate                 General.

________________________________________________ Sushil Kukreja, Judge

By way of instant petition under Section 482 of

the Code of Criminal Procedure (for short "Cr.P.C."), the

petitioner has challenged order dated 24.07.2023, passed by

learned Special Judge-II, Hamirpur, District Hamirpur, H.P., in

an application No. 138 of 2023, titled as Sunil Thakur Vs.

State of H.P., whereby application filed by the

applicant/petitioner under Section 437/446A of Cr. PC

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

seeking bail by accepting fresh personal and surety bonds

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has been dismissed.

2. Brief facts of the case are that the petitioner was

arrested on 27.04.2017 in case FIR No. 98 of 2017, under

Sections 21 & 29 of the NDPS Act, registered at Police

Station Sadar-Hamirpur, District Hamirpur, H.P. Thereafter,

he preferred bail application No. 36 of 2017 and vide order

dated 18.05.2017, he was granted bail by the Court of

learned Additional Sessions Judge, Hamirpur, District

Hamirpur, H.P. subject to certain conditions and on furnishing

personal bond in the sum of Rs. 75,000/- with one surety in

the like amount to the satisfaction of any Judicial Magistrate

1st Class at Head Quarter Hamirpur, H.P. On 30.05.2023, the

petitioner was not present before the learned trial Court, and,

therefore, the learned trial Court had ordered forfeiture and

cancellation of the personal as well as surety bonds.

Consequently, non-bailable warrants were ordered to be

issued against the petitioner.

3. On 08.06.2023, the petitioner filed an application

under Section 437/446A of the Cr. PC for grant of bail by

accepting fresh personal and surety bonds. However, the

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learned trial Court vide order dated 24.07.2023, dismissed

the application filed by the petitioner by observing that the

petitioner had violated the terms and conditions of the bail

order and misused the liberty of bail granted to him and

refused to accept fresh personal and surety bonds. Now the

petitioner is in judicial custody.

4. Feeling aggrieved and dissatisfied with order

dated 24.07.2023, the petitioner has preferred the instant

petition with a prayer to set aside the same.

5. I have heard the learned counsel for the

petitioner, learned Additional Advocate General for the

respondent-State and carefully gone through the material

available on record.

6. The case of the petitioner is that he could not

appear before the learned trial Court on 30.05.2023 because

he misunderstood the date of hearing as 20.05.2023 instead

of 30.05.2023 and his non-appearance before the learned

trial Court was neither willful not intentional. The law with

regard to grant of bail is well settled. In Sanjay Chandra Vs.

Central Bureau of Investigation, (2012) 1 Supreme Court

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Cases 49, it has been held that the object of bail is to secure

the appearance of the accused person at his trial by

reasonable amount of bail and that every man is deemed to

be innocent until duly tried and duly found guilty. Relevant

portion of the aforesaid judgment reads as under:-

"21. In bail applications, generally, it has been laid down from the earliest times that 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.

22. From the earliest times, it was appreciated that

detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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.

23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of

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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 un- convicted person for the purpose of giving him a taste of imprisonment as a lesson."

7. In Manoranjana Sinh alias Gupta Vs. CBI,

(2017) 5 SCC 218, the Hon'ble Apex Court reiterated the

decision rendered in Sanjay Chandra's case (supra) by

holding as under:-

"16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an

economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a

punishment unless it is required to ensure that an accused person would stand his trial when called

upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to

be exercised with care and caution by balancing the valuable right of liberty of an individual and the

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interest of the society in general. It was elucidated

that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the

factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the

Constitution was highlighted."

8. Similar reiteration of law can be found in

Dataram Singh Vs. State of Uttar Pradesh & Another,

(2018) 3 SCC 22, wherein it has been held that a person is

believed to be innocent until found guilty and the grant of bail

is the general rule and putting a person in jail or in a prison or

in a correction home is an exception. Relevant portion of the

aforesaid judgment reads as under:-

"1. 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 rule 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

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incarcerated and for longer periods. This does not do

any good to our criminal jurisprudence or to our society.

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4. 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 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."

9. It is not in dispute that quantity of the contraband

involved in the present case is 21.86 gms of heroin, which is

an intermediate quantity and the petitioner was granted bail

by the Court of learned Additional Sessions Judge, Hamirpur,

District Hamirpur, H.P. vide order dated 18.05.2017.

Therefore, in view of the facts and circumstance of the

present case, the present petition is allowed and order dated

24.07.2023, passed by the learned Special Judge-II,

Hamirpur, District Hamirpur, H.P. is quashed and set aside

and the petitioner, who has been arrested by the police in

case FIR No. 98/2017, dated 27.04.2017, registered at Police

Station Sadar-Hamirpur, District Hamirpur, H.P., under

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Sections 21 & 29 of the NDPS Act, shall be forthwith released

on bail, subject to his furnishing fresh personal bond to the

tune of Rs. 75,000/- (Rupees seventy five thousand), with one

fresh surety in the like amount, to the satisfaction of learned

Trial Court. This bail order is subject, however, to the

following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor

he will try to win over the Prosecution witnesses or terrorise them in any manner;

(iv) that he will not repeat the offence, as is alleged to have been committed by him.

(v) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the

trial of the case.

(vi) that he will not leave India without prior permission of the Court.

10. Needless to say that the Investigating agency

shall be at liberty to move this Court for cancellation of the

bail, if any of the aforesaid conditions is violated by the

petitioner.

11. Be it stated that any expression of opinion given

in this order does not mean an expression of opinion on the

merits of the case and the trial Court will not be influenced by

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any observations made therein.

12. Petition stands disposed of in above terms, so

also the pending application(s), if any.

                                                  ( Sushil Kukreja )




      th
    14 September, 2023                                 Judge
           (raman)