Sandeep Sharma, J
1. Bail petitioner, Joginder Singh, who is behind bars since 21.2.2019, has approached this Court in the instant proceedings filed under S.439 CrPC, for
grant of bail in case FIR No. 29, dated 21.2.2019 under Ss. 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, registered at Police
Station Jogindernagar, District Mandi, Himachal Pradesh.
2. Perusal of status report filed in terms of order dated 15.7.2020 reveals that on 21.2.2019, at 7.25 pm, police stopped an Innova vehicle bearing
registration No. PB-08CX-4568 at Naka laid near Gadiara NH 154, being driven by co-accused, Rishi Pal. Though above named driver made an
attempt to run away from the spot, but he was apprehended by the Police officials. Since the police became suspicious about the conduct of the driver
of the vehicle, they decided to carry out search of the vehicle in the presence of one independent witness, namely Aneesh Kumar, who had reached
the Naka in his vehicle bearing registration No. HP29A-7675. Present bail petitioner was one of the occupants of the Innova vehicle. Allegedly the
police in the presence of the aforesaid independent witness, recovered 1.290 kg Charas. Since no plausible explanation ever came to be rendered on
record by the above said persons, for possessing the contraband, Police after completion of necessary codal formalities registered FIR, detailed herein
above against the bail petitioner and co- accused, Rishi Pal on 21.2.2019 and since then the bail petitioner is behind the bars, whereas co-accused
Rishi Pal stands enlarged on bail vide judgment dated 30.4.2019 passed by a coordinate Bench of this Court in CrMP(M) No. 622 of 2019.
3. Mr. Sanjeev Sood, learned Additional Advocate General, while fairly admitting the factum with regard to filing of Challan in the competent Court of
law, contends that though at this stage, nothing remains to be recovered from the bail petitioner but keeping in view the gravity of offence alleged to
have been committed by bail petitioner, he does not deserve any leniency. Mr. Sood, learned Additional Advocate General, while referring to the
status report contends that it stands duly established on record that on the date of alleged incident, huge quantity of contraband was being smuggled
/transported in the vehicle being driven by Rishi Pal. While fairly admitting the factum with regard to enlargement of the co-accused on bail, Mr. Sood,
learned Additional Advocate General contends that since two cases already stand registered against the bail petitioner under Narcotic Drugs &
Psychotropic Substances Act, it would not be in the interest of justice to enlarge him on bail, because in the event of petitioner being enlarged on bail,
he may not only flee from justice rather may again indulge in such activities again, as such, his application for grant of bail may be rejected outrightly.
Mr. Sood further contends that the statements of material prosecution witnesses are still to be recorded, as such, it would not be in the interest of
justice to enlarge the bail petitioner at this stage.
4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on 21.2.2019, vehicle bearing
registration No. PB-08-CX-4568, (Innova) being driven by co-accused Rishi Pal was stopped for checking and allegedly the police in the presence of
independent witness, namely Aneesh Kumar recovered commercial quantity of Charas but, during proceedings of the case, learned Counsel appearing
for the petitioner made available a copy of the statement made by independent witness Aneesh Kumar, in the trial court, to demonstrate that he has
not supported the prosecution case and thus has been declared hostile. Perusal of the statement made available by learned Counsel appearing for the
petitioner reveals that the said witness has not supported the case of the prosecution, as such, has been declared hostile. As per status report, Police
could only associate one independent witness at the time of alleged recovery as such, there is no force in the submission made by learned Additional
Advocate General that the statements of material prosecution witnesses remain to be recorded. No doubt, at this juncture, prosecution witnesses are
being examined by learned trial Court but, as has been taken note herein above, independent witness stands examined and only official witnesses
remain to be examined.
5. Leaving everything aside, perusal of status report itself suggests that the vehicle in question, from which allegedly a huge quantity of Charas came
to be recovered belongs to co-accused, Rishi Pal, who has been already enlarged on bail by Coordinate Bench of this Court vide judgment dated
30.4.2019 rendered in CrMP(M) No. 622 of 2019. Charas , in the case at hand, never came to be recovered from the conscious possession of the
present bail petitioner, rather, same was recovered from the dicky of vehicle bearing registration No. PB-08-CX-4568 owned by co-accuse Rishi Pal.
Judgment dated 30.4.2019 passed by Coordinate Bench of this Court granting bail to the co-accused has attained finality because no challenge, if any,
has been laid to the aforesaid judgment by respondent-State. Learned Additional Advocate General was unable to dispute the aforesaid factum, as
such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period during trial. Moreover, as has been taken
note herein above, independent witness associated by the investigating agency has turned hostile. Though the matter is fixed for 11.9.2020 for
recording statements of remaining witnesses but there is every likelihood of further delay in the matter on account of spread of Covid-19 pandemic, as
such, this Court cannot let the bail petitioner. incarcerate in jail for an indefinite period during trial. No doubt, contraband allegedly recovered in the
present case is of ‘commercial’ quantity and as such, rigours of S.37 of the Act ibid are attracted here but, as has been taken note herein
above, contraband never came to be recovered from the conscious possession of the bail petitioner, rather, same was recovered from the vehicle
owned and driven by co-accused, who is already on bail. Guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence
collected on record by the prosecution as such, it would not be in the interest of justice to curtail the freedom of the bail petitioner for an indefinite
period during trial, especially when he has already suffered for more than a year. Though status report filed by respondent suggests that two cases
under Act ibid are already pending against the bail petitioner, but guilt, if any, of the bail petitioner is yet to be determined in those cases and as such,
mere pendency of those cases cannot be a ground to refuse bail to the bail petitioner, especially when no material worth credence has been made
available suggestive of the fact that in the event of bail petitioner being enlarged on bail, he may flee from justice or indulge in such activities again.
Apprehension expressed by learned Deputy 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.
6. Recently, the 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 can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the
Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:
“2. 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 incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial
discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally
there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person
perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an
accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed.
Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was
not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding
due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also
necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such
offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even
Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. 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.â€
7. By now it is well settled 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. The Hon’ble Apex Court in Sanjay
Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:-
“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. Detention in custody pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some unconvicted 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 India , 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. Apart from the
question of prevention being the object of refusal of bail, one must not lose sight of 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 unconvicted person for the propose of giving him a taste of imprisonment as a lesson.â€
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 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.
9. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
“This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 4,0 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 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.â€
10. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496 ,has laid down the following principles to be
kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
11. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged
on bail, subject to furnishing fresh bail bonds in the sum of Rs.5,00,000/- with one local surety in the like amount, to the satisfaction of the Investigating
Officer/magistrate available at the station, besides the 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
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) He shall surrender passport, if any, held by him.
12. 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.
13. 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 petition stands accordingly disposed of.
Copy dasti.
