Law with Regard to Grant of Bail

Narcotic Drugs & Psychotropic Substances Act, 1985 - Ss. 20, 61 & 85 - Police recovered 255 grams charas from the bag - Less than commercial quantity - freedom of bail petitioner cannot be allowed to be curtailed for indefinite period during the trial, especially when investigation in the case is complete and nothing is required to be recovered from the bail petitioner.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Coram: Hon'ble Mr. Justice Sandeep Sharma, Judge.  

Cr.MP(M) No. 73 of 2018

Date of Decision No.27.02.2018 

Amandeep ........ Petitioner Versus State of Himachal Pradesh .....Respondent. 

For the petitioner: Mr. Chaman Negi, Advocate. For the respondent: Mr. Dinesh Thakur, Additional Advocate General, with Mr. Raju Ram Rahi, Deputy Advocate General. 

Sandeep Sharma, Judge (oral): 

Bail petitioner, namely Amandeep, who is in custody since 23.01.2018, has approached this Court by way of instant bail petition, seeking therein regular bail in case FIR No.10/2018, dated 21.01.2018, under Section 20-61-85 of the Narcotic Drugs & Psychotropic Substances Act ( for short "Act") registered at police Station, Sadar Theog, District Shimla, Himachal Pradesh. 

2. Sequel to orders dated 24.01.2018 and 2.2.2018, ASI Chet Ram, Police Station, Sadar Theog, District Shimla, has come present in Court alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 

3. Careful perusal of the record/status report suggest that FIR, detailed hereinabove, came to be lodged at police Station, Sadar Theog, District Shimla at the behest of complainant i.e. ASI Chet Ram, who alleged that on 21/01/2018, he alongwith patrolling party intercepted HRTC Bus bearing No.HP-03B-6175 coming from Nerwa side. During search of the bus, one bag was recovered from the person i.e. bail petitioner sitting at seat No.24 of the bus. Since, the bail petitioner tried to hide the same from the police, Investigating Officer as well as other members of the patrolling party got suspicious and they checked his bag. During search of the bag, police recovered 255 grams charas from the bag being carried by the bail petitioner. Police after completion of codal formalities registered the case against the bail petitioner under Section 20-61-85 of the Act at police Station Sadar Theog, District Shimla and since then the bail petitioner is behind the bar. 

4. Mr. Chaman Negi, learned counsel representing the bail petitioner, while referring to the record/status report, contended that the investigation in the case is complete and nothing is required to be recovered from the bail petitioner and as such, he deserves to be enlarged on bail. Mr. Negi, further contended that bare perusal of the status report, clearly suggest that no codal formalities, as required under the Act was completed by the police party before conducting the search of HRTC Bus bearing No. HP-03B-6175. Mr. Negi, further contended that the record/status report, clearly suggest that no independent witness was associated by the police/patrolling party at the time of effecting recovery, if any, from the bag allegedly owned and possessed by the bail petitioner and as such, no case, if any, is made out under Section 20-61-85 of the Act against the bail petitioner. Lastly, Mr. Negi, contended that even otherwise contraband allegedly recovered from the conscious possession of the bail petitioner is less than commercial quantity and as such, he deserve to be enlarged on bail. While praying for regular bail in favour of the petitioner, Mr. Negi, contended that bail petitioner is local resident of the area and there is no likelihood of his fleeing from the justice and he shall always remain available for investigation and trial. 

5. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing the aforesaid prayer having been made by the learned counsel representing the bail petitioner, contended that bare perusal of the record/status report, clearly suggest that police before effecting recovery from the bail petitioner completed all the codal formalities and recovered 255 grams charas from the conscious possession of the bail petitioner in the presence of other passengers and as such, there is no force in the arguments of learned counsel representing the bail petitioner that no independent witness was associated at the time of effecting recovery. Mr. Thakur, further contended that true it is that quantity allegedly recovered from the bail petitioner is not commercial, but that cannot be a ground to enlarge the bail petitioner on bail, especially keeping in view the gravity of offence allegedly committed by him. While fairly admitting that investigation in the case is complete and nothing is required to be recovered from the bail petitioner, Mr. Thakur, contended that in the event of petitioner's being enlarged on bail at this stage, great prejudice may be caused to the investigation of the case because bail petitioner being local resident of the area may influence witnesses and investigation and as such, bail petition may be rejected. 

6. I have heard the learned counsel for the parties and gone through the record carefully. 

7. Careful perusal of the record/status report though clearly suggest that on 21.01.2018 police party intercepted HRTC Bus No.HP-03B-6175 and thereafter conducted search, but there appears to be considerable force in the argument of learned counsel representing the petitioner that there is no mention, if any, in the record/status report that other co-passengers were also searched before effecting recovery from the bag owned and possessed by the bail petitioner. Similarly, there appears to be no attempt on the part of the police at the time of effecting recovery to record the statements of other co-passengers sitting in the bus. 

8. Leaving everything aside, quantity of contraband allegedly recovered from the bail petitioner is admittedly less than commercial quantity i.e.255 grams, as has been categorically stated in the record/status report and as such, rigor of section 37 of the Act, are not attracted in the present case. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of the evidence adduced on record by the investigating agency but this Court after having perused the record/status report is of the view that freedom of bail petitioner cannot be allowed to be curtailed for indefinite period during the trial, especially when investigation in the case is complete and nothing is required to be recovered from the bail petitioner. 

9. It has been repeatedly held by the Hon'ble Apex Court as well as this Court in various pronouncements that freedom of an individual is of utmost importance and that cannot be allowed to be curtailed for indefinite period. In the present case also, the guilt of the petitioner is yet to be proved by the investigating agency by leading cogent and convincing evidence and as such this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period. 

10. 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 categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon'ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the judgment are reproduced 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 roffences. 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 rincarceration 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. 

11. By now it is well settled that gravity alone cannot be 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; wherein it 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 rconviction, 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." 

12. 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. 

13. Law with regard to grant of bail is now well settled. The apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:- 

"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful . use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 

112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: 

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; 

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; 

(iii) The possibility of the applicant to flee from justice; 

(iv) The possibility of the accused's likelihood to repeat similar or the other offences. 

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. 

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. 

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; 

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; 

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be reconsidered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 

(Emphasis supplied) 

14. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under: 

"This Court in Sanjay Chandra v. CBI, 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 to 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 ad 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 the 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." 

15. 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; 

(viii) reasonable apprehension of the witnesses being influenced; and 

(ix) danger, of course, of justice being thwarted by grant of bail. 

16. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to furnishing personal bonds in the sum of Rs.2.00 Lakh with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, 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 

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

17. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 

18. 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.