CRMPM/2715/2022 on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CrMP(M) No. 2715 of 2022 Decided on: December 30, 2022 ________________________________________________________ Jasvir Thakur

………..Petitioner

Versus

State of Himachal Pradesh

….Respondent ________________________________________________________

Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1No. ________________________________________________________ For the Petitioner : Mr. Sanjeev K. Suri, Advocate.

For the Respondents : Mr. Narinder Guleria, Additional Advocate General with Mr. Sunny Datwalia, Assistant Advocate General. ________________________________________________________ Sandeep Sharma, Judge (oral):

By way of petition filed under S. 439 CrPC, prayer has been made on behalf of Jasvir Thakur, who is behind bars since 11.6.2022 for grant of regular bail in FIR No. 187, dated 2.6.2022 under Ss. 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act.

2. Pursuant to order dated 13.12.2022, respondent-State has filed status report, perusal whereof reveals that on 1.6.2022, at 5.45 pm, police stopped a motor cycle bearing registration No. HP-20G- 3069 being driven by accused Anmol near Valmiki Mohalla, Una. Since the driver of the motor cycle and pillion rider i.e. present bail petitioner, after having seen police tried to run away, police after apprehending them, deemed it necessary to conduct search of the aforesaid persons as also of the motor cycle. Allegedly, after 1 Whether the reporters of the local papers may be allowed to see the judgment?

associating independent witnesses, police conducted search of motor cycle and allegedly recovered 21.36 grams of Chitta/heroin from dickey of the motor cycle. Since no plausible explanation came to be rendered on record by the aforesaid persons, qua possession of the aforesaid quantity of contraband, Police, after completion codal formalities, registered FIR against the driver and pillion rider and since then bail petitioner, who was a pillion rider on the motor cycle in question, on the date of alleged incident, is behind the bars whereas, driver of the motor cycle, Anmol, stands enlarged on bail vide order dated 30.11.2022 in CrMP(M) No. 2457 of 2022. Since investigation is complete and nothing remains to be recovered from bail petitioner, he has approached this court in the instant proceedings, praying therein for grant of regular bail.

3. Learned counsel for the petitioner vehemently argued that the bail petitioner has been falsely implicated because at no point of time, contraband came to be recovered from his possession rather same was recovered allegedly from dickey of motor cycle being driven by co accused Anmol. While referring to the status report, learned counsel for the petitioner submits that as per statement of co-accused, Gagandeep, he had handed over the motor cycle to co- accused Anmol for bringing contraband. He submits that at no point of time, Gagandeep stated anything with regard to the bail petitioner rather disclosed to the police that he had handed over motor cycle to Anmol. He further submits that otherwise also, main accused Anmol already stands enlarged on bail as such, petitioner also deserves to be enlarged on bail. He submits that since no case in past stands registered against the bail petitioner, he deserves leniency.

4. While fairly admitting factum with regard to filing challan in the competent court of law, Mr. Narinder Guleria, learned Additional Advocate General contends that though nothing remains to be recovered from bail petitioner but keeping in view gravity of offence alleged to have been committed by the bail petitioner, he does not deserve leniency and his prayer for bail deserves outright rejection. He further submits that evidence adduced on record clearly reveals that the present bail petitioner with co accused had been indulging in illegal trade of narcotics, as such, it may not be in the interest of justice to enlarge him on bail as in that event he may not only flee from justice but may also indulge in such activities again.

5. Having heard learned counsel for the parties and perused status report, this court finds that intermediate quantity of contraband never came to be recovered from the conscious possession of the bail petitioner, rather from dickey of the motor cycle being driven by co-accused Anmol. Since co-accused Gagan Deep, who was owner of motor cycle disclosed to the police that he had handed over motor cycle to Anmol, for bringing contraband, it would be too premature to conclude, guilt, if any, of the present bail petitioner, who was pillion rider with co-accused Anmol, on the relevant day.

6. Moreover, co accused Anmol stands already enlarged on bail and as such, there appear to be no reason for this court to let the bail petitioner incarcerate in jail for an indefinite period during trial. Since intermediate quantity of contraband came to be recovered from the motor cycle, on which bail petitioner was travelling as a pillion rider, rigours of S.37 are not attracted. Similarly this court finds that no case in past stands registered against the petitioner and as such, it would be harsh to conclude at this stage, that bail petitioner indulges in illegal trade of narcotics, rather, this court is of the view that petitioner is a drug addict and required to be taken to rehabilitation centre at the first instance, to bring him back to the main stream of society.

7. Though the case at hand, is to be decided by learned court below in the totality of evidence led on record but keeping in view aforesaid glaring aspects of the matter, there appears to be no reason for this court to curtail freedom of the bail petitioner for an indefinite period during trial. Moreover, this court finds that the motor cycle allegedly used in the offence, does not belong to the bail petitioner rather to Gagandeep Singh, who stands enlarged on bail.

8. 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. 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.

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 can not 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 above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.1.00 Lakh with one local surety 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 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.

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 petition alone. The petition stands accordingly disposed of. 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.

(Sandeep Sharma) Judge December 30, 2022 (vikrant)