Balwant Ghunta @ Happy Ghunta vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner-Balwant Ghunta @ Happy Ghunta, who is behind bars since 10.4.2022, has approached this court by way of instant petition filed under S. 439 CrPC, for regular bail in FIR No.35, dated 21.6.2021 under S.22 of the Narcotic Drugs and Psychotropic Substances Act, registered at Police Station Nerwa, District Shimla, Himachal Pradesh.

Pursuant to order dated 14.8.2023, respondent State has filed status report, ASI Asim Parvez, investigating officer, Police Station Nerwa, District Shimla, Himachal Pradesh has come present with record. Record perused and returned.

Perusal of record /status report reveals that on 21.6.2021, police party headed by ASI Sanjay, stopped a motor cycle bearing registration No. UA-07S-9025 for checking at Fediz bridge. Since, after having seen police, driver of the motor cycle namely Dhruv Ghunta tried to turn the motor cycle, police deemed it necessary to cause his personal search and search of the motor cycle. After associating independent witness, police apprehended co- accused Dhruv Ghunta and allegedly recovered 40 bottles (100 ml each) of cough syrup Corex from a bag tied on backside of motorcycle. Since the above named person failed to render plausible explanation qua possession of aforesaid quantity of the contraband, police after having completed necessary codal formalities lodged FIR, as detailed herein above against Dhruv Ghunta, who otherwise now stands enlarged on bail vide order dated 31.12.2021 passed by this court in CrMP(M) No. 2319 of 2021. Since Challan stands filed in competent court of law and nothing remains to be recovered from bail petitioner, he has approached this court for grant of regular bail.

Mr. Shanti Swaroop, learned counsel for the petitioner vehemently argued that the bail petitioner has been falsely implicated because, at the time of alleged recovery of contraband, bail petitioner was not with main accused Dhruv Ghunta, who stands already enlarged on bail. He further submitted that a false story has been concocted by police to save main accused, Dhruv Ghunta, because at the time of recovery, on 21.6.2021, petitioner was not present at Fedis bridge, rather recovery, if any, of contraband was made from motorcycle being driven by co- accused Dhruv Ghunta. While making this court peruse statement of independent witness associated at the time of recovery, recorded during trial, learned counsel for the petitioner stated that said witness specifically denied the factum with regard to recovery, if any, of contraband from the co-accused in his presence and as such, case otherwise registered against bail petitioner and co-accused is likely to fail. While making this court peruse statement of PW-4 HHC Naresh Kumar, learned counsel for the petitioner stated that the aforesaid official has falsely deposed in the court with a view to save his skin, especially in view of emergence of audio clip, wherein he was heard talking to uncle of main accused Dhruv Ghunta. He submitted that PW-4 HHC Naresh Kumar and uncle of main accused Dhruv Ghunta purposely, with a view to save Dhruv Ghunta, prepared an audio therein naming the bail petitioner herein. Lastly, Mr. Shanti Swaroop learned counsel for the petitioner submitted that the bail petitioner is behind the bars for more than one year and four months but till date only 7 prosecution witnesses have been examined out of total 14 and as such, petitioner otherwise deserves to be enlarged on bail on account of delay in conclusion of trial.

While fairly acknowledging the factum with regard to filing of Challan in competent court of law, Mr. B.C. Verma, learned Additional Advocate General states fairly states that though nothing remains to be recovered from the 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. While making this court peruse the material available on record, Mr. Verma contends that there is overwhelming evidence on record suggestive of the fact that present bail petitioner and co accused Dhruv Ghunta were carrying commercial quantity of contraband on the date of alleged incident but at the time of recovery, bail petitioner succeeded in fleeing from spot. While referring to statement of PW-4 HHC Naresh Kumar made in trial court, learned Additional Advocate General states that it has come in the statement of this witness that when motorcycle was stopped for checking present bail petitioner was a pillion rider and he was carrying contraband in his hand but before he could be apprehended, he fled from spot. Mr. Verma states that since 7 prosecution witnesses out of 14 stand examined, prayer for grant of bail on account of delay in conclusion of trial made by bail petitioner is not tenable.

Having heard learned counsel for the parties and perused the material available on record, this court finds that on the date of alleged incident, police stopped motorcycle being driven by co-accused Dhruv Ghunta for checking. While driver of the motorcycle was being questioned by the police, bail petitioner who, was a pillion rider, succeeded in fleeing from the spot. Police, after having arrested co-accused Dhruv Ghunta, started investigation and found that on the date of alleged incident, present bail petitioner was also present on the spot alongwith the main accused Dhruv Ghunta. While dealing with the bail petition filed by Dhruv Ghunta, this court had an occasion to hear audio clip produced by learned counsel for the petitioner-Dhruv Ghunta, wherein uncle of Dhruv Ghunta could be heard talking to PW-4 HHC Naresh Kumar, wherein allegedly Naresh Kumar, stated that contraband actually was being carried in bag by present bail petitioner but he fled from the spot

Though, aforesaid story of prosecution has been supported by PW-4 Naresh Kumar, while making deposition before learned trial Court, but independent witness PW-1 Kulvinder Singh, associated by police at the time of recovery, has not supported the prosecution case. This witness stated that accused Dhruv Ghunta was apprehended by police on the date of alleged incident and from his possession 40 bottles of Codeine Phosphate were found but he nowhere stated factum, if any, of presence of the present bail petitioner on the spot.

In the cross-examination conducted upon this witness, prosecution was nowhere able to extract anything from this witness, contrary to what he stated in his examination-in-chief. Interestingly, PW-7 Balak Ram, uncle of Dhruv Ghunta in his statement given to court admitted that after alleged incident, he had made telephonic call to HHC Naresh Kumar to enquire about case of his nephew. No doubt, statements made by PW-4 and 7 adduced on record by prosecution suggest that HHC Naresh, while talking to PW-7 Balak Ram uncle of Dhruv Ghunta, had disclosed that at the time of recovery, present bail petitioner was with main accused Dhruv Ghunta, but such statement may not be sufficient to conclude complicity if any of bail petitioner in commission of offence punishable under S.22 of the Act, especially in view of statement of PW-1, where he has nowhere stated that at the time of recovery, bail petitioner was also present or he was told by police that another co-accused i.e. present bail petitioner has fled from spot.

Leaving everything aside, Dhruv Ghunta, from whose conscious possession contraband came to be recovered, has been enlarged on bail as such, this court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has suffered for more than one year and four months.

Hon'ble Apex Court and this Hon'ble 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. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law, as such, this court sees no reason to let the bail petitioner incarcerate in jail, for an indefinite period, especially when co-accused stands enlarged on bail. Though, the case at hand is to be decided by learned trial Court in the totality of evidence led on record by prosecution but keeping in view aforesaid glaring aspects of the matter, there appears to be no justification to curtail the freedom of the bail petitioner for an indefinite period during trial.

Since in the case at hand, guilt of the bail petitioner is yet to be proved in accordance with law, prayer of bail petitioner for grant of bail deserves to be allowed. Apprehension expressed by of learned Additional Advocate General that in the event of the bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions.

No doubt, rigours of S.37 of the Act are attracted on account of recovery of a commercial quantity of contraband but not from conscious possession of the present bail petitioner. S.37 of the Act does not impose a bar on granting bail in commercial quantity of contraband, rather in such cases, court after havaing afforded due opportunity of hearing to the public prosecutor may grant bail in such cases, if it is satisfied that the bail petitioner has been falsely implicated in the case and there is no likelihood of his indulging in such activities again, in the event of being enlarged on bail.

Since there is nothing on record to show that bail petitioner had been indulging in such activities in past, this court has reasons to presume that in the event of being enlarged on bail, he may not indulge in such activities. Similarly this court finds that the bail petitioner was not arrested with main accused at the time of recovery and he came to be named subsequently on the basis of audio clip containing conversation inter se PW-4 and PW-7, and as such, there does not appear to be direct involvement of bail petitioner, rather, the same is required to be proved by prosecution by leading cogent evidence.

Apart from above, this court finds that bail petitioner is behind bars for more than one year and four months but prosecution has been able to examine only 7 witnesses out of 14 witnesses and as such, this court has reasons to believe that 2-3 years would be taken by learned trial Court to conclude the evidence and if the bail petitioner is kept behind bars during this period, same would be amount to pre- trial conviction, which is not permissible in law.

Since there is no control, if any, of accused in progress of trial, rather he is totally dependent upon steps, if any, taken by the prosecution for early conclusion of the trial, incarceration of accused in jail for indefinite period during the trial would definitely amount to pre-trial conviction, which is totally impermissible in law.

Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

Reliance is placed upon judgment passed by Hon’ble Apex Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:

“18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

Reliance is also placed upon judgment passed by Hon’ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:

“2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed.”

In the aforesaid judgment, Hon’ble Apex Court has held that while considering the prayer for grant of bail, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.

In the instant case, bail petitioner is behind bars for one year and four months and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial.

No doubt, in the instant case, petitioner is accused of having indulged in heinous crime having adverse impact upon the society but mere gravity of offence cannot be the sole criteria to reject the bail rather certain other factors are also required to be taken into consideration. Reliance in this regard is placed upon the judgment passed by this Court in Jeet Ram v. State of H.P., Latest HLJ 2003(HP) 23, wherein it has been held as under:-

“7. As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co-accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him the fatal blow with a 'Draft'. Prima facie it is difficult to believe that when a person is caught hold of by three persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelt ing of stones and holding of the deceased is prima facie clouded by suspicion as none of the accused persons who are alleged to have caught hold of the deceased while co- accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused persons may not necessarily lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149, IPC, In the facts of the ease, is a debatable question.

In Thakar Singh v. State of Punjab, 1969 Cur LJ 810 (relied upon by the learned Counsel for the accused persons to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh 10 caught hold of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under :

"........ It is not a case in which it can be legitimately contended on behalf of the prosecution that there was any pre-planned common intention on the part of both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."

In Jaspal Singh v. State of Haryana, 1986 (2) Recent CR 582 (2) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise :

"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co-accused did cause injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."

In Kuldip Singh v. State of Punjab, 1994 (3) Rec Cri R 137 : (1994 Cri LJ 2201) (SC) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave 'Lathi' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon'ble Supreme Court held that the injury on the head of the injured was serious one and proved to be grievous, therefore, the offence under Section 307, I.P.C. is made out against Kuldip Singh who caused 11 such injury but in so far as the other co-accused is concerned, he inflicted only one blow on the shoulder with the 'Lathi' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the injured.”

“12.There is no doubt that offence punishable under Section 302, I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the 6f-fence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account”.

No doubt, gravity of offence is an important factor to be taken into consideration, while considering prayer for grant of bail, but that may not be the sole criteria for rejecting prayer for grant of bail.

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 cannot 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.

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.

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.

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.

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. 1,00,000/- with two local sureties 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.

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.

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.

The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.