CRMPM/2319/2021 of DHRUV @ GIRISH Vs STATE OF HP on 31 December 2021

O R D E R

Bail petitioner, namely Dhruv @ Girish, who is behind the bars since 21.6.2021, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.35 of 2021, dated 21.6.2021, registered at police Station, Nerwa, District Shimla, H.P., under Sections 22, 65 and 85 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘Act’).

2. Pursuant to orders dated 6.12.2021 and 21.12.2021, respondent-State has filed status report and ASI Sanjay Kumar, has also come present with the record. Record perused and returned.

3. Close scrutiny of the record/status report reveals that on 21.6.2021, police party headed by ASI Sanjay Kumar stooped one motorcycle bearing registration No. UA-07-S-9025 at 7.10 PM for checking at Fediz bridge. Since driver of the aforesaid motorcycle i.e. present bail petitioner tried to turn the motorcycle after having seen the police, police deemed it necessary to cause his personal search as well as of the motorcycle. Police after having associated one independent witness, apprehended the bail petitioner and allegedly recovered 40 bottles of 100 ml each of cough syrup namely, corex from the bag tied in the backside of the motorcycle. Since, bail petitioner failed to render plausible explanation, if any, qua the possession of aforesaid contraband, police after completion of necessary codal formalities, registered the FIR, as detailed hereinabove, against the bail petitioner and since then he is behind the bars.

4. On 20.12.2021, respondent-State in terms of order dated 6.12.2021 filed the status report, stating therein facts, as have been taken note hereinabove. However, on that day, counsel representing the petitioner while seriously disputing the correctness of the status report, vehemently argued that though on the date of alleged incident, bail petitioner was driving the motorcycle in question, but recovery of contraband, as detailed hereinabove, never came to be recovered from him or from the bag allegedly tied with the motorcycle, rather such recovery was effected from the person namely, Balwant, who was a pillion rider and after having seen the police had fled away from the spot. With a view to substantiate her aforesaid submission, learned counsel for the petitioner made this Court to hear an audio clip, wherein conversation interse HC Naresh Kumar and one Sh. Lokinder Ranta was recorded. In the aforesaid audio clip, HC Naresh Kumar could be heard stating that at the time of alleged recovery person namely Balwant was pillion rider and he actually handed over the bag containing 40 bottles of corex to the police officials, but thereafter, he fled away from the spot. Above named person while answering the question that why he did not make any attempt to apprehend that person, HC Naresh Kumar replied that since that person had fled away and he could jump from the cliff, police did not make any attempt to catch hold of him. 5.Having taken note of sensitivity and seriousness of the matter, this Court vide order dated 20.12.2021, directed Superintendent of Police, Shimla to remain present, who came present in this Court on 21.12.2021, and assured this Court

that matter shall be investigated afresh and true facts shall be placed before the Court. Today, in terms of order dated 21.12.2021, respondent-State has filed fresh status report, wherein it has been again reiterated that on the date of alleged incident present bail petitioner was apprehended while carrying 40 bottles of corex and there was none alongwith him at the time of recovery. It has been further stated in the fresh status report that Audio clip produced before this Court containing conversation interse HC Naresh Kumar with Lokinder Ranta has no connection with the present case. It has been further stated that when present bail petitioner was apprehended, HC Naresh Kumar was not present on the spot and he is not the employee of the police station concerned. Interestingly, there is no mention, if any, with regard to efforts, if any, made by the authorities to ascertain the correctness and genuineness of the audio clip made available to this Court. Though, in the fresh status report police has claimed that HC Naresh Kumar has no connection with the case and he was not present on the spot, but conversation as recorded in the audio clip suggests something else. Even, if it is presumed and believed that HC Naresh Kumar was not present on the spot at the time of alleged incident, it is not understood that how he could narrate sequence of events allegedly happened on the date of alleged recovery to the person namely, Lokinder Ranta. If the audio clip is heard in its entirety, it clearly reveals that on the date of alleged incident HC Naresh Kumar was not only present on the spot, but pillion rider Balwant after having handed over bag containing 40 bottles of corex fled away from the spot and no effort, if any, was made by the police to apprehend that person.

6. As has been observed hereinabove, HC Naresh Kumar may not be present on that day on the spot as has been claimed by the police, but question remain that how he had specific intimation with regard to alleged incident and in what capacity, he narrated sequence of events allegedly happened on the date of alleged recovery to the person namely Lokinder Ranta. Though, petitioner herein cannot claim himself to be innocent on the ground that alleged recovery was not affected from him but from the person namely Balwant, but entire story of the police has become doubtful on account of conversation recorded in the audio clip made available to this Court, which was heard in Court by Superintendent of Police, Shimla. It is none of the case of the police that voice containing in the audio clip is not HHC Naresh Kumar and as such, matter needs to be investigated by the police.

7. Since commercial quantity of contraband came to be recovered from the motorcycle being driven by the petitioner herein on the date of alleged incident, rigors of Section 37 of the Act are attracted, but careful perusal of

Section 37 of the Act, clearly suggests that there is no complete bar/prohibition to grant bail to the accused having found in possession of commercial quantity of contraband, rather court after having afforded due opportunity of being heard to the public prosecutor can proceed to grant bail even in the cases of commercial quantity, if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the act and secondly that he is not likely to commit any offence while on bail. In the case at hand, audio clip produced before this court containing voice of HC Naresh Kumar has created serious doubt with regard to correctness of the story put forth by the police and as such, this Court sees no reasons to let the bail petitioner incarcerate in jail for indefinite period during the trial, especially when nothing remains to be recovered from him. Moreover, challan stands filed in competent court of law and bail petitioner is behind the bars for more than six months. There is nothing in the status report suggestive of the fact that in past also bail petitioner had been indulging in the illegal trade of narcotic and as such, he being first offender deserve some leniency.

8. Hon'ble Apex Court as well as this Court have held in a catena of judgments that one is deemed to be innocent, till the time his/her guilt is proved in accordance with law. 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 the bail petitioner to stringent conditions.

9. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anrdecided 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.”

10. In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court 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. 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.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 the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc.

13. In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed and bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.50,000/- with one local surety in the like amount, 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; 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; 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 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. 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.

16. Copy of the instant order be made available to the DGP of police by learned Deputy Advocate General today itself, enabling him to take appropriate action in accordance with law against the erring officials.

31[st] December, 2021

(shankar)

(Sandeep Sharma) Judge