Himachal Pradesh High Court

Date Of Decision: 04.10.2024 vs State Of Himachal Pradesh on 4 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                   2024:HHC:9592




         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                           Cr. MP (M) No.2131 of 2024

                                                           Date of Decision: 04.10.2024

Ashish                                                                           ...Petitioner
                                             Versus

State of Himachal Pradesh                                                    ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1
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For the Petitioner:                          Mr. Manoj Pathak, Advocate.

For the Respondent:                           Mr. Rajan Kahol, Mr. Vishal Panwar
                                              and   Mr.   B.C.Verma,    Additional
                                              Advocate Generals, with Mr. Ravi
                                              Chauhan, Deputy Advocate General.
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Sandeep Sharma, J. (Oral)

Bail petitioner namely, Ashish, who is behind the bars

since 18.03.2024, has approached this Court in the instant

proceedings filed under Section 483 of the Bharatiya Nagarik

Suraksha Sanhita, for grant of regular bail in case FIR No. 34 of

2024, dated 18.03.2024, under Sections 21 & 29 of the NDPS Act,

registered at police Station, Theog, District Shimla, Himachal

Pradesh. Respondent-State has filed status report and HC Vikram

has come present with the record. Record perused and returned.

2. Close scrutiny of the status report/record reveals that

on 18.03.2024, at about 5.05 PM, police after having received

Whether reporters of the local papers may be allowed to see the judgment?

2024:HHC:9592

secret information that persons travelling in vehicle bearing

registration No.PB-08CW-6929 coming from Bhalech side, may be

carrying contraband, laid nakka at Bhalech link road and stopped

the aforesaid vehicle for checking. Since after having seen the

police, occupants of the car got perplexed and started making

excuses, police deemed it necessary to cause personal search of

the occupants as well as of the car. Allegedly, police after having

associated independent witnesses affected the search of the car

and allegedly recovered 5.6 grams of chitta from the envelope kept

below the foot mat of front seat. Since occupants of the car

namely Ashish i.e. present bail petitioner, co-accused Lovepreet

Singh and Gaurav Verma were unable to render proper

explanation qua possession of aforesaid quantity of contraband,

police after having completed necessary codal formalities, lodged

the FIR, as detailed hereinabove, and arrested all the petitioners.

Co-accused, namely Gaurav Verma already stands enlarged on

bail, whereas present bail petitioner alongwith co-accused

Lovepreet Singh is behind the bars for more than six months.

Since investigation in the case is complete and nothing remains to

be recovered from the bail petitioner, coupled with the fact that

marriage of real sister of the petitioner is to be solemnized on

12.10.2024, prayer has been made on behalf of the petitioner for

grant of regular bail.

2024:HHC:9592

3. While fairly admitting factum with regard to filing of the

challan in the competent Court of law, Mr. Ravi Chauhan, learned

Deputy Advocate General, contends that though nothing remains

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

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

does not deserve any leniency and as such, prayer made on his

behalf for grant of bail deserves to be rejected. He states that

petitioner is a drug peddler because in past one case under NDPS

Act already stands registered against him. He states that within a

period of one week after his being enlarged on bail, petitioner

again indulged in illegal trade of narcotics and as such, in the event

of his being enlarged on bail, he may not only flee from justice, but

may again indulge in these activities and as such, his prayer for

grant of bail deserves to be rejected.

4. Having heard learned counsel for the parties and

perused material available on record, this Court finds that 5.6

grams of chitta was recovered from the vehicle being driven by co-

accused Lovepreet Singh in the presence of independent

witnesses and at that relevant time petitioner herein was also one

of the occupant of the car and as such, he cannot be permitted to

claim that police has falsely implicated him as well as other co-

accused. However, having taken note of the fact that petitioner is

behind the bars for more than six months and quantity of 2024:HHC:9592

contraband allegedly recovered from the vehicle in question is

intermediate quantity, prayer made on behalf of the petitioner for

grant of bail deserves to be considered. No doubt, in past one case

stands registered against the petitioner under NDPS Act, but such

fact may not dissuade this Court from considering the prayer made

on behalf of the petitioner for the reason that no fruitful purpose

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

indefinite period during the trial. There is nothing to suggests that

bail petitioner is a drug peddler, if it is so, he is required to be

provided medical aid at first instance, so that he is brought back to

main stream at the earliest. Having taken note of the fact that bail

petitioner is behind the bars for more than six months, coupled with

the fact that rigours of Section 37 of the Act are not attracted on

account of recovery of intermediate quantity, prayer made on

behalf of the petitioner for grant of bail deserves to be allowed. No

doubt, petitioner is accused of his having committed heinous crime,

having adverse impact in the society, but since guilt, if any, of the

petitioner is yet to be established on record by the prosecution by

leading cogent and convincing evidence, no fruitful purpose would

be served by keeping him behind the bars for indefinite period

during trial, which if permitted, would amount to pre trial conviction.

5. Hon'ble Apex Court and this Court in a catena of

cases have repeatedly held that one is deemed to be innocent, till 2024:HHC:9592

the time, he/she is proved guilty in accordance with law. In the

case at hand, complicity, if any, of the bail petitioner is yet to be

established on record by the investigating agency, as such, this

Court sees no reason to let the bail petitioner incarcerate in jail for

an indefinite period during trial, especially when nothing remains to

be recovered from him. Apprehension expressed by learned

Deputy 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.

6. 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.

7. 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 2024:HHC:9592

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.

8. Hon'ble Apex Court in Sanjay Chandra versus

Central Bureau of Investigation (2012)1 Supreme Court Cases

49 has held that gravity alone cannot be a decisive ground to deny

bail, rather competing factors are required to be balanced by the

court while exercising its discretion. It has been repeatedly held by

the Hon'ble Apex Court that object of bail is to secure the

appearance of the accused person at his trial by reasonable

amount of bail. The object of bail is neither punitive nor

preventative.

9. 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 2024:HHC:9592

the accused, circumstances which are peculiar to the accused

involved in that crime.

10. 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.

11. In view of the aforesaid discussion as well as law laid

down by the Hon'ble Apex Court, petitioner has carved out a case

for grant of bail, accordingly, the petition is allowed and the

petitioner is ordered to be enlarged on bail in aforesaid FIR,

subject to his furnishing personal bond in the sum of Rs. 1,00,000/-

with two local sureties in the like amount each to the satisfaction

of concerned Chief Judicial Magistrate/trial Court, with 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 2024:HHC:9592