Date Of Decision: 11.09.2024 vs State Of H.P
2024 Latest Caselaw 13597 HP

Himachal Pradesh High Court

Date Of Decision: 11.09.2024 vs State Of H.P on 11 September, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

2024:HHC:8426 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.1907 of 2024

.

Date of Decision: 11.09.2024 _______________________________________________________ Pawan Kumar .......Petitioner

Versus State of H.P. ... Respondent Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 For the Petitioner: r Mr. Sandeep K. Pandey, 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.

H.C. Norender Raj No.96, I/O Police Station Chopal, Distt. Shimla, H.P, in person.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Bail petitioner namely, Pawan Kumar, who is

behind the bars since 15.06.2024, has approached this Court in the

instant proceedings filed under Section 483 of Bharatiya Nagarik

Suraksha Sanhita, praying therein to grant regular bail in case FIR

No.21 of 2024, dated 15.06.2024, under Sections 22 and 29 of the

Narcotic Drugs & Psychotropic Substances Act, 1985 (for short

'Act'), registered at police Station, Chopal, District Shimla, Himachal

Pradesh.

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

2. Pursuant to the notices issued in the instant

proceedings, respondent-State has filed status report and HC

.

Norender Raj has come present alongwith the record. Record

perused and returned.

3. Close scrutiny of the status report/record clearly

reveals that on 15.06.2024, at about 12.40 PM, police after having

received secret information that person namely, Chirag Ramchaik

indulges in illegal trade of narcotics, raided his room and allegedly

recovered 38 bottles of Cadizrex-T containing Codeine Phosphate

and Triprolidine Hydrochloride Syrup. At the time of recovery, four

persons were found sitting in the room of above named accused.

Since no plausible explanation ever came to be rendered on record

qua possession of aforesaid quantity of contraband, police after

having completed necessary codal formalities arrested above named

Chirag alongwith other four boys namely Gulshan, Rakesh, Pawan

and Nishant, who at the relevant time were found sitting in the room.

Accused named Munish allegedly disclosed to the police that he had

gone with co-accused Gulshan to Uttrakhand for buying the

contraband. Since investigation in the case is complete and nothing

remains to be recovered from the bail petitioner, he has approached

this Court in the instant proceedings for grant of regular bail.

4. While fairly admitting factum with regard to filing of

Challan in the competent court of law, Mr. Rajan Kahol, learned

.

Additional Advocate General, submits 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. Learned Additional Advocate General submits

that though 38 bottles of Codeine Phosphate containing prohibited

drugs were not recovered from the conscious possession of the bail

petitioner, but there is overwhelming evidence adduced on record

suggestive of the fact that bail petitioner had also given money for

purchasing bottles of Syrup containing Codeine Phosphate. Learned

Additional Advocate General contends that petitioner is a drug

peddler, which fact otherwise stands established on record with the

placing of record of financial transaction interse co-accused Chirag

and present bail petitioner. Learned Additional Advocate General

submits that in the event of petitioner being enlarged on bail, he may

not only flee from justice, rather may again indulge in such activities

and as such, his prayer for grant of bail may be rejected out rightly.

5. Having heard learned counsel for the parties and

perused material available on record, this Court finds that contraband

as detailed hereinabove, was not recovered from the conscious

possession of the bail petitioner, rather same was recovered from the

room of co-accused Chirag but since at the time of recovery,

petitioner was found to be sitting in the room, his name also came to

.

be incorporated in the FIR. Allegedly, all the persons sitting in the

room transferred the money to Gulshan Kumar, who later on supplied

them contraband. Though, perusal of bank details placed on record

suggests that some amount was transferred in the bank account of

co-accused-Munish Thakur, but that may not be sufficient to conclude

guilt, if any, of the present bail petitioner, especially when as per own

case of the prosecution contraband was allegedly supplied by

Gulshan Kumar and recovered from the room of Chirag. Whether bail

petitioner alongwith other four persons had deposited money in the

account of the bail petitioner for sale and purchase of contraband

allegedly recovered from them, is a question to be decided by the

learned trial Court in totality of evidence, but certainly at this stage

same cannot be a ground to deny bail to the petitioner, from whose

possession admittedly no contraband was recovered, rather he was

named in the FIR on the basis of his presence in the room from where

contraband was recovered.

6. True, it is that keeping in view the commercial

quantity of contraband recovered in the case at hand, rigours of S.37

of the Act are attracted, but that does not mean that this court is

estopped from enlarging the bail petitioner on bail. Bare perusal of

S.37 of the Act clearly reveals that there is no complete bar for the

court to grant bail in the cases involving commercial quantity, but

.

court while doing so, at the first instance is required to provide

adequate opportunity of being heard to the public prosecutor and

thereafter, if it has reason to presume and believe that the person,

seeking bail, has been falsely implicated and there is no likelihood of

his indulging in such activities again, it can proceed to grant bail.

Though, case at hand shall be decided by the trial Court in the totality

of evidence collected on record by investigating agency, but keeping

in view the aforesaid aspects of the matter, 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 bail petitioner being enlarged on bail, he

may flee from justice, can be best met by putting him to stringent

conditions. Co-accused-Munish who had allegedly purchased

contraband from Uttrakhand already stands enlarged on bail vide

order dated 28.07.2024 passed by this Court in Cr.MP(M) No.1781

of 2024 titled Munish Thakur Vs. State of H.P.

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.

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 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 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 bail bonds in the sum of Rs.2,00,000/- with two local

.

sureties in the like amount each, to the satisfaction of the learned trial

Court, besides the following conditions:

a. He shall make himself available for the purpose of in-

terrogation, if so required and regularly attend the trial Court on each and every date of hearing and if pre- vented by any reason to do so, seek exemption from appearance by filing appropriate application; b. He shall not tamper with the prosecution evidence nor

hamper the investigation of the case in any manner whatsoever;

c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so

as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

d. He shall not leave the territory of India without the prior permission of the Court.

e. He shall surrender his passport, if any, before the in- vestigating agency.

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

or violates any of the condition 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 petition alone. The petitions stand

accordingly disposed of.

16. Learned counsel for the petitioner is permitted to

produce copy of order downloaded from the High Court website

before the concerned authority, who 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
    September 11, 2024
         (Ankit)





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