Himachal Pradesh High Court
Sunil Bharti vs State Of Himachal Pradesh on 20 September, 2024
1
( 2024:HHC:8902 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.1132 of 2024
Date of Decision : 20.09.2024
Sunil Bharti
...... Petitioner
Versus
State of Himachal Pradesh
......Respondent
Coram:
The Hon'ble Mr. Justice Bipin Chander Negi, Judge
Whether approved for reporting?1
For the petitioner : Mr. Manoj Pathak and Mr. Harsh Sharol, Advocates.
For the respondent : Mr. Raj Kumar Negi, Additional Advocate General.
Bipin Chander Negi, Judge (oral
The present petition has been filed by the petitioner, seeking
bail in case FIR No.187/2023 dated 09.07.2023, under Section 20-61-85 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
referred to as "the ND&PS Act"), registered at Police Station, Baddi, District
Solan, Himachal Pradesh.
2. Brief facts giving rise to the case at hand are that a Police
Party headed by Head Constable Amit Thakur, while on narcotic drug
checking at Gas Plant, Baddi received a secret information that one
Gautam Kumar who is a tenant of Rohit Kumar at Place Ward No.5, Baddi
Whether reporters of Local Papers may be allowed to see the judgment? Yes
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is indulging in the illegal business of selling Ganja. As per secret
information received, an immediate raid on the rented premises, wherein
the said Gautam Kumar was residing, was called for as it was believed that
huge quantity of Ganja could be recovered in the raid to be so made. The
said secret information was received on 09.07.2023 at about 10:10 p.m. In
pursuance to the aforesaid, a raid was conducted in the rented premises of
said Gautam Kumar. In the raid, contraband (Ganja) weighing 30 Killo 376
grams was recovered. The present petitioner was arrested on 24.07.2023
and since then he is in custody.
3. I have heard learned counsel for the parties and perused the
status report and the record.
4. In the case at hand, present petitioner has been implicated on
the basis of statement made by Gautam Kumar under Section 67 of the
ND&PS Act. The said statement of co-accused Gautam Kumar is not
admissible in law and cannot be read in evidence in terms of law laid down
by the Hon'ble Apex Court in Criminal Appeal No.878 of 2019, titled Ajay
Kumar Gupta vs. Union of India, decided on 22.08.2024.
5. Other than the aforesaid, the reasons for apprehending the
bail petitioner is the CDR details inter se Gautam Kumar and the present
bail petitioner. It is a settled preposition of law that if the CDR details of
some of the accused is established then those will be examined at the
stage of trial. In this respect, it would be appropriate to refer to the decision
of the Hon'ble Apex Court in Special Leave to Appeal (CRL) No.242 of
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2022 titled State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta
and another, decided on 10.01.2022 along with connected matters.
6. Last but not least, reliance is placed on certain Watts-app
messages. Reliance on printouts of Watts-app messages downloaded
from the mobile phones cannot be treated as sufficient material to establish
a live law link between the bail petitioner and Gautam Kumar. More so,
when no scientific reports to this effect have been placed on record. In this
respect, it would be appropriate to refer to decision of the Hon'ble Apex
Court in a Petition for Special Leave to Appeal (CRL.) No.5703 of 2021,
titled Bharat Chaudhary vs. Union of India, decided on 13.12.2021.
7. Suffice it to state that the facts and circumstances narrated
herein above are sufficient in themselves to justify the satisfaction that the
bail petitioner is not guilty of the alleged offence. In the status report so
filed, no adverse material has been placed on record to substantiate that
the petitioner is likely to commit any offence while on bail. In view of the
aforesaid, rigors of Section 37 of the ND&PS Act stand satisfied by the bail
petitioner. In this respect, reference can be made to the decision of the
Hon'ble Apex Court in State of Kerala and others vs. Rajesh and others,
2020 (12) SCC 122.
8. Petitioner is in custody since 26.02.2023. Trial is going to take
time for its conclusion. The charges against the petitioner are yet to be
proved. Pretrial incarceration is not the rule. No past criminal history has
been attributed to the present bail petitioner. Further detention of the
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accused would not serve any fruitful purpose, rather would prove per-
judicial to the rights of the petitioner.
9. Punishment begins after conviction. Every man is deemed to
be innocent until duly tried and duly found guilty. The consequences of pre-
trial incarceration are grave. A person presumed innocent is subjected to
psychological and physical deprivations of jail. Further, a jailed individual is
prevented from contributing to the preparation of his defence.
10. The object of bail is to secure the attendance of the accused
person at his trial by reasonable amount of bail. The object of bail is neither
punitive nor preventative.
11. In view of the aforesaid, the instant petition is allowed and the
petitioner is enlarged on bail in case FIR No.187/2023 dated 09.07.2023,
under Section 20-61-85 of the ND&PS Act, registered at Police Station,
Baddi, District Solan, Himachal Pradesh, subject to his furnishing personal
bond in the sum of Rs.2,00,000/-with one local surety in the like amount to
the satisfaction of the learned trial Court having jurisdiction over the
concerned Police Station, subject to the following conditions:-
(i) Petitioner shall 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;
(ii) Petitioner shall not temper with the evidence or hamper the
investigation in any manner whatsoever;
(iii) Petitioner will not leave India without prior permission of the
Court;
(iv) Petitioner shall not make any inducement, threat or promise,
directly or indirectly, to the Investigating Officer or any
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person acquainted with the facts of the case to dissuade
him/her from disclosing such facts to the Court or any
Police Officer;
(v) Petitioner shall inform the Station House Officer of the
concerned police station about his place of residence during
bail and trial. Any change in the same shall also be
communicated within two weeks thereafter. Petitioner shall
furnish details of his Aadhar Card, Telephone Number,
Email, PAN Card, Bank Account Number, if any;
(vi) Petitioner shall in the 1st week of every month mark his
attendance in the concerned Police Station; &
(vii) It is made clear that in case petitioner is arraigned as an
accused, in future, in any FIR under NDPS Act, then his bail
is liable to be cancelled. It is open for the Investigating
Agency to move appropriate application in that regard.
12. In case of violation of any of the terms & conditions of the bail,
respondent-State shall be at liberty to move appropriate application for
cancellation of the bail. It is made clear that observations made above are
only for the purpose of adjudication of instant bail petition and shall not be
construed as an opinion on the merits of the matter. Learned trial Court
shall decide the matter without being influenced by above observations.
13. With the aforesaid observations, the present petition stands
disposed of, so also the pending miscellaneous applications, if any.
14. In case, the petitioner is not released within a period of seven
days from the date of grant of bail, the Superintendent, District Jail Solan,
District Solan, H.P., is directed to inform this fact to the Secretary, DLSA,
Solan. The Superintendent, District Jail, Solan, District Solan, H.P., is
further directed that if the petitioner fails to furnish the bail bonds, as per
the order passed by this Court, within a period of one month from today,
the said fact be submitted to this Court.
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15. A copy of this order be sent to the Superintendent, District Jail,
Solan and the learned trial Court by FASTER.
16. A downloaded copy of this order shall be accepted by the
learned trial Court, while accepting the bail bonds from the petitioner and in
case said Court intends to ascertain the veracity of the downloaded copy of
order presented to it, same may be ascertained from the official website of
this Court.
( Bipin Chander Negi)
September 20, 2024 (KS) Judge
VANDN Digitally signed by VANDNA SHARMA
DN: C=IN, O=HIGH COURT OF HIMACHAL
PRADESH, OU=HIGH COURT OF
A HIMACHAL PRADESH SHIMLA,
Phone=d3b84f3143a60e693f007f9c5e0fe881
52279f1d9f450a0255823cfc38862034,
PostalCode=171001, S=Himachal Pradesh,
SERIALNUMBER=3a417623218f5838c6af79
SHARM de7dc1906f731266758b23a4f74fad98f00221
65e3, CN=VANDNA SHARMA
Reason: I have reviewed this document
Location:
Date: 2024-09-20 18:22:47
A
