Himachal Pradesh High Court

Ajay Kumar vs State Of Himachal Pradesh on 15 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                       ( 2024:HHC:9766 )


         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                           Cr. MP (M) No.1593 of 2024

                                                          Date of Decision: 15.10.2024
-----------------------------------------------------------------------------------------
Ajay Kumar                                                                       ...Petitioner
                                            Versus

State of Himachal Pradesh                                                    ...Respondent
--------------------------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
---------------------------------------------------------------------------------------------
For the Petitioner:                          Mr. Prashant Sharma, 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.
-----------------------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)

Bail petitioner namely, Ajay Kumar, who is behind the

bars since 15.03.2024, has approached this Court in the instant

proceedings filed under Section 483 of Bharatiya Nagarik

Suraksha Sanhita (hereinafter 'BNSS') for grant of regular bail in

case FIR No. 12 of 2024, dated 15.03.2024, under Sections 21, 25

& 29 of the NDPS Act, registered at police Station, Swarghat,

District Bilaspur, Himachal Pradesh.

2. Respondent-State has filed status report, perusal

whereof reveals that on 15.03.2024, police stopped car bearing

registration No. PB11G-7242 at a place called Gara Moda for

checking. Since after having seen the police, occupants of the car

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

2 ( 2024:HHC:9766 )

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 effected the search and allegedly recovered 29.07

grams of chitta/heroin from the polythene bag kept near the gear

box of the car. Since, no plausible explanation ever came to be

rendered on record qua possession of aforesaid intermediate

quantity of contraband, police after completion of necessary codal

formalities, lodged the FIR against the occupants including the bail

petitioner, who admittedly. at the relevant time, was travelling in the

car. The bail petitioner is behind the bars, whereas another co-

accused Manoj Kumar stands enlarged on bail vide order dated

3.4.2024 passed by the learned Special Judge, Bilaspur, District

Bilaspur, H.P in Bail Application No.25/22 of 2024.

3. Though, at first instance, petitioner had applied for

regular bail in the Court of learned Special Judge, Bilaspur, District

Bilaspur, Himachal Pradesh, however the same was dismissed on

account of the fact that already one case under NDPS Act is

pending adjudication against the petitioner. Since challan stands

filed in the competent Court of law and nothing remains to be

recovered from the bail petitioner coupled with the fact that he has

already suffered for more than seven months, he has approached

this Court for grant of regular bail.

3 ( 2024:HHC:9766 )

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

challan in the competent Court of law, Mr. Vishal Panwar, learned

Additional Advocate General, 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 states that there is

overwhelming evidence adduced on record suggestive of the fact

that bail petitioner indulges in illegal trade of narcotics and one

case under NDPS Act already stands registered against him, which

itself suggests that the bail petitioner is not a drug addict but he

has become drug peddler 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. He states that since petitioner has

committed heinous crime having adverse impact on the society, it

may not be in the interest of justice to enlarge him on bail.

5. Having heard learned counsel for the parties and

perused material available on record, this Court finds that on the

date of alleged incident, intermediate quantity of 29.07 grams of

chitta/heroin was recovered from the car, wherein admittedly at

relevant time petitioner was also traveling. Since contraband was

recovered in the presence of independent witnesses, this Court is

not persuaded to agree with learned counsel for the petitioner that 4 ( 2024:HHC:9766 )

petitioner has been falsely implicated. However, having taken note

of the fact that bail petitioner is behind the bars for more than

seven months and charge has not been framed till date, 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 considered.

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.

6. Though, it has been claimed on behalf of the

respondent-State that the petitioner is a drug peddler, but there

appears to be no evidence to prove such fact, rather it appears to

this Court that the petitioner has become drug addict and as such,

is required to be provided medical aid at first instance. No doubt, in

past one case stands registered against the petitioner under NDPS

Act, but that fact may not dissuade this Court to consider prayer for

grant of bail because incarceration of the petitioner in jail for

indefinite period may cause further harm to the petitioner. Since

petitioner is a young boy, aged 33 years, lenient approach is 5 ( 2024:HHC:9766 )

required to be adopted, so that he is taken to rehabilitation centre

at the earliest for treatment and he is brought back to main stream

of society.

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

cases have repeatedly held that one is deemed to be innocent, till

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

Additional 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.

8. 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 6 ( 2024:HHC:9766 )

conviction will entail, character of the accused, circumstances

which are peculiar to the accused involved in that crime.

9. Hon'ble Apex Court in Criminal Appeal No. 227/2018,

Dataram Singh vs. State of Uttar Pradesh & Anr decided on

6.2.2018 has held that freedom of an individual cannot be curtailed

for indefinite period, especially when his/her guilt is yet to be

proved. It has been further held by the Hon'ble Apex Court in the

aforesaid judgment that a person is believed to be innocent until

found guilty.

10. 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.

11. 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 7 ( 2024:HHC:9766 )

party will appear to take his trial. Otherwise also, normal rule is of

bail and not jail. Apart from above, Court has to keep in mind

nature of accusations, nature of evidence in support thereof,

severity of the punishment, which conviction will entail, character of

the accused, circumstances which are peculiar to the accused

involved in that crime.

12. 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.

13. 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. 2,00,000/-

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;

8 ( 2024:HHC:9766 )

(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 his passport, if any, before the investigating agency.

14. It is clarified that if the petitioner misuses the liberty or

violates any of the conditions imposed upon him, the investigating

agency shall be free to move this Court for cancellation of the bail.

15. 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.

16. The petitioner is permitted to produce copy of order

downloaded from the High Court website and the trial Court shall

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

order from the High Court website or otherwise.

(Sandeep Sharma) Judge October 15, 2024 (mamta)

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH,

VIKRANT OU=JUDICIARY, Phone=5d2f851af76d452c04fe80af0eb04901baccf523a962b5 b328d35fb9075dbbb0, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=b9ba41101dabcec1188a4f694ff769b34ac0

CHANDEL 1c5f3677265199bb13a3810dec17, CN=VIKRANT CHANDEL Reason: I am approving this document Location: