Sandeep Sharma DECISION
Sandeep Sharma, J.
1. Bail petitioner namely Rehmat Ali, has approached this Court in the instant proceedings filed under Section 439 of Cr.P.C., praying therein for grant of regular bail in connection with FIR No. 25/18 dated 24.3.2018, under Sections 20, 25 and 29 of the NDPS Act and 181 of Motor Vehicles Act, registered, at P.S. Dalhousie, District Chamba, H.P.
2. Sequel to order dated 6.2.2019, passed by this Court, ASI Balwant Singh, I.O. P.S. Dalhousie, District Chamba, H.P., has come present in Court alongwith record of the case. 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. Close scrutiny of the record/status report reveals that on 24.3.2018, police party, which had laid Naka at Chhana Mor, apprehended two persons namely Faruq Mohd. and Bashir Mohd., carrying psychotropic substance. Since above named persons after having seen police tried to run away from the spot, police apprehended them and thereafter, recovered charas weighing about 3.87 kg. After completion of necessary codal formalities, police registered case against the above named persons under Sections 20, 25 and 29 of the NDPS Act and 181 of Motor Vehicle Act on 24.3.2018 and since then, they are behind the bars. During investigation, police found involvement of present bail petitioner as well as present namely Bitu Ram, from whom, allegedly accused persons namely Faruq Mohd. and Bashir Mohd., purchased charas recovered from their possession. During investigation, police found that present bail petitioner helped the accused carrying charas from Thalli Nakror to Channa Mor. As per Investigating Agency, present bail petitioner, who drives Taxi/CAB, charged sum of Rs. 12,000/- from the co-accused for dropping them from Thalli Nakror to Channa Mor. Above named persons revealed during their investigation that present bail petitioner asked them to pay sum of Rs. 3,000/- per kg for dropping them from Thalli Nakror to Channa Mor and as such, in the aforesaid background, case under Section 25 of the NDPS Act, came to be registered against the bail petitioner and since 3.4.2018, bail petitioner is behind the bars.
4. Learned counsel for the petitioner while referring to the record/status report strenuously argued that no case, if any, is made out against the present bail petitioner under Section 25 of the Act. Learned counsel contended that no contraband came to be recovered from the possession of the bail petitioner and as such, no case, if any, could be registered against him merely on the statements having been made the accused persons, who were admittedly apprehended with charas weighing 3.87 kg. He further contended that present bail petitioner, who is a Taxi/CAB driver, on the askance of co-accused, Bashir Mohd., who is a jeweler by profession, provided his Taxi for dropping them from Thalli Nakror to Channa Mor. Mr. Parihar contended that since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, no fruitful purpose would be served by keeping the bail petitioner behind the bars, especially when he is totally innocent. Mr. Parihar, further contended that there is no record from, where it can be inferred that petitioner has been indulging in such like activities in past also and as such, he being first offender deserves to be enlarged on bail. Lastly, learned counsel for the petitioner contended that the bail petitioner is a local resident of the area and as such, there is no possibility of his absconding from investigation and trial.
5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to completion of investigation and filing of challan in the competent court of law contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency. Mr. Thakur, contended that case under Section 25 of the Act is clearly made out against the petitioner because it has come in evidence that he was in know of the fact that persons namely Faruq Mohd. and Bashir Mohd., propose to carry contraband that too of commercial quality in his vehicle from Thalli Nakror to Channa Mor. While referring to the record record/status report, Mr. Thakur, contended that both the above named accused, have categorically stated tin their statements that petitioner charged Rs. 12,000/- from them for dropping them from Thalli Nakror to Channa Mor, meaning thereby, bail petitioner actively participated and connived with the accused persons, who were subsequently apprehended with commercial quantity of the contraband.
6. Having heard learned counsel for the parties and perused material available on record, this court finds that commercial quantity of contraband came to be recovered from c-accused namely Faruq Mohd. and Bashir Mohd., who are behind the bars. It is none of the case of the Investigating Agency that commercial quantity of contraband came to be recovered from the vehicle of the present bail petitioner, who before recovery of aforesaid contraband dropped Faruq Mohd. and Bashir Mohd., at Chhana Mor. In nutshell, case against the bail petitioner is that he helped the co-accused transferring psychotropic substance, but case under Section 25 of the Act, came to be registered against the bail petitioner on the basis of statements having been made by the co-accused namely Faruq Mohd. and Bashir Mohd., who in their statements disclosed to the police that present bail petitioner charged sum of Rs. 3,000/- per kg from them for dropping them from Thalli Nakror to Channa Mor. Factum with regard to charging of money/amount, as has been stated by the co-accused, is yet to be proved in accordance with law by the Investigating Agency. No doubt, there is evidence suggestive of the fact that accused person travelled in taxi being driven by the present bail petitioner before their arrest by the Investigating Agency, but merely travelling of accused persons in the car being driven by the present bail petitioner may not be sufficient to conclude involvement, if any, of the present bail petitioner as far as commission of offence under Section 25 of the Act is concerned, especially, when no recovery of contraband came to be effected either from the person of the bail petitioner or his car. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence to be led on record by the Investigating Agency, but having perused material available on record this Court sees no reason to allow the bail petitioner to incarcerate in jail for an indefinite period, especially when he is behind the bars for approximately one year. Guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence and as such, freedom of the bail petitioner cannot be curtailed for an indefinite period. Otherwise also. It is also not in dispute that bail petitioner is a first offender and local resident of the area, who shall always remain available for investigation as well as trial as and when required by the Investigating Agency.
7. Leaving everything aside, careful perusal of section 37 of the Act, which prohibits the grant of bail to the person found carrying commercial quantity of contraband suggests that person accused of offence punishable under Sections 19, 24 or 27-A cannot be ordered to be released on bail unless public prosecutrix is given opportunity to oppose the application, if any, made for his release on bail. In the case at hand, neither commercial quantity of contraband, came to be recovered from the conscious possession of the present bail petitioner or his car nor case, if any, came to be registered against him under Sections 24 or 27-A of the Act and as such, rigors of section 37 are not attracted in the present case.
8. 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 the accused is not proved in accordance with law, he is deemed to be innocent. The relevant paras of the aforesaid 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 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."
9. 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 MANU/SC/1375/2011 : (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 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."
10. 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.
11. Law with regard to grant of bail is now well settled. The apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, MANU/SC/1021/2010 : (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, MANU/SC/0215/1980 : (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 considered 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)
12. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another MANU/SC/0916/2010 : (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, behavior, 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.
13. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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.
14. 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.
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 application alone. The petition stands accordingly disposed of.
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