Dinesh Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

Through Video Conferencing

By way of present bail petition filed under Section 439 Cr.PC, prayer has been made on behalf of the bail petitioner namely Dinesh Kumar, who is behind bars since 1st May, 2019, for grant of regular bail in FIR No. 54 of 2019 dated 26.4.2019, under Sections 21 and 29 of the ND&PS Act, Sections 420, 467, 468, 471 and 471 and 120B of IPC and Section 18 C of Drugs and Cosmetic Act, registered at Police Station Majra, District Sirmour, Himachal Pradesh.

Respondent State has filed the Status report in terms of order dated 11.11.2020. I.O. ASI Rajpal is also present with records. Record/status report reveals that on 25.4.2019, police party on the basis of secrete information raided the premises of “ M/s Apple Field International” situate in Village Puruwala, Tehsil Paonta Sahib, District Sirmaur and allegedly recovered huge quantity of prohibited drugs. Investigation reveals that alongwith police, Drug Inspector namely Suresh Kumar inspected the record and documents of the factory named herein above, but the fact remains that no inconsistency in the documents as well as stock available in the factory was found. Apart from aforesaid, premises police also raided the godown allegedly possessed by “M/s Apple Field International”, and recovered huge quantity of prohibited drugs. Sh. Ram Swaroop, who is owner of the store/godown, disclosed to the police that he had given the premises to “M/s Apple Field International” on monthly rent basis. Assistant Drug controller after having inspected the contraband opined as under:

“......(1) Mecodine syrup B.No. AF19075,02/2021Mfd. By Apple Field International Puruwala01 Bottle 100 ML(2) CoreX Syrup 100ML each C. No. AF1834009/2010 mfd byRemec Health care Banglore 13 Bottles. (3) unlabeled Codine Syrup 88 9508

(4) Loose coloured Blue Capsule containing Tromadol 67 Packets 26.15 Kg Total weight -645 Mg (filled cap) NDPS Act 132 label of Codine Phosphet Drugs and Cosmetics Act ds Drug. Deptt.

ADC Sr. No. 1 4 132 loose label of Codine Phosphet 0 NDPS Act 9508 unlabelled Codine Syrup 88

.....”

Since no plausible explanation came to be rendered on behalf of the owner Mr. Rajeev qua the possession of the aforesaid huge quantity of prohibited drugs, case under Section 21 of the NDPS Act and Section 18 C of the DC Act came to be registered against him as well as other co-accused namely Tarun Batra, Ashish Sardana, Rajeev Kumar and present bail petitioner Dinesh Kumar.

Co-accused namely Tarun Batra, Ashish Sardana and Rajiv Kumar already stand enlarged on bail vide judgments dated 2.9.2019 and 17.12.2019, passed by this Court in Cr.MP(M) Nos. 1423, 1450 and 1906 of 2019, whereas present bail petitioner is behind bars since 1st May, 2019 and yet another accused namely Atishore is absconding.

Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting factum with regard to filing of challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, bail petition having been filed on his behalf may be rejected outrightly. Learned Additional Advocate General further contends that huge contraband came to be recovered from the premises, which was leased out to the petitioner by person namely Ram Swaroop and as such, it cannot be said that he has been falsely implicated. Mr. Bhatnagar, contends that record clearly reveals that having taken note of the statement of owner of the godown in question as well as present bail petitioner that the prohibited drugs recovered from the godown belonged to the co-accused namely Rajeev Kumar, Tarun Batra and Ashish Sardana, case has been also registered against the aforesaid persons, but since premises from where prohibited drugs were recovered stood rented to the bail petitioner, at the time of the raid, he has been rightly booked under the aforesaid provisions of law. Lastly, Mr. Bhatnagar, submits that since trial is yet to commence, it would not be in the interest of justice to enlarge the petitioner on bai,l who in the event of his being enlarged on bail may not only flee from justice, but may also dissuade the material prosecution witnesses from deposing truth in the court of law and as such, his prayer for grant of bail may be rejected outrightly.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that all the co-accused save and except Atishore already stand enlarged on bail. Precisely the case of the prosecution against the present bail petitioner is that godown from where prohibited drugs were recovered was given on rent to the present bail petitioner by owner namely Ram Swaroop. Besides above, investigating agency has made an attempt to collect evidence on record to demonstrate that it is not Rajiv, who is actual owner of the “M/s Apple Field International”, but real owners are Ashish Sardana and Tarun Batra. It is not in dispute that present bail petitioner was an employee of “ M/s Apple Field International”.

Though record reveals that godown from where huge quantity of contraband was recovered, was rented out in the name of the present bail petitioner Dinesh Kumar, but if statements made by Ram Swarooop i.e. owner of the godown and Jaspal i.e. another employee of “Apple Field International” are perused in its entirety, it clearly suggest that co-accused namely Rajiv Kumar, Ashish Sardana and Tarun Batra, had actually contacted owner of the godown Ram Swaroop for hiring the godown, but rent deed was made in the name of the present bail petitioner, who at that relevant time was an employee of the company in question. Both Ram Swaroop and Jaspal in their statements given to the police have categorically stated that godown in question was given on rent to “M/s Apple Field International” and rent qua the same was paid by the company. Besides above, this Court finds from the record that cheques allegedly issued as rent qua the premises in question were issued in the name of Ram Swaroop by Rajiv Kumar i.e. owner of “M/s Apple Field International”. Though Ram Swaroop in his statement has stated that he had given shop/godown to “M/s Apple Field International” and he had been receiving the rent from the above named factory, but definitely, there is no documentary evidence at this stage to prove tenancy, if any, of “M/s Apple Field International” qua the premises from where contraband was allegedly recovered. If the record of Investigating Agency is perused minutely, it clearly emerges that investigating agency has made an endeavor to carve out a case that present bail petitioner Dinesh Kumar, in whose name agreement was executed was an employee of “M/s Apple Field International”.

Apart from above, Ram Swaroop i.e. owner of the store/godown has stated that he had rented out the premises in question to “M/s Apple Field International” and person namely Tarun Batra used to pay the rent. On the basis of aforesaid statement, Investigating Agency has roped in persons namely Tarun Batra and Ashish Sardana in the case at hand claiming that they are the real owners of the factory in question. During investigation, it has emerged that the premises in question, which was allegedly rented out to the “M/s Apple Field International” on 13.8.2016 for a period of 11 months was further leased out to co-accused Ekta Tiwari, meaning thereby premises in question on the date of raid i.e. 25.4.2019 were under the tenancy of co-accused Ekta Tiwari. Though investigation reveals that the present bail petitioner facilitated hiring of the premises in question to M/s Ekta Tiwari as is evident from rent lease entered between Ekta Tiwari and Ram Swaroop on 20.12.2016. It clearly emerges from the record that on the basis of subsequent rent deed, entered between Ekta Tiwari and Ram Swaroop, premises in question were leased out to Ekta Tiwari. Though there is no concrete evidence available on record suggestive of the fact that premises in question was let out to “M/s Apple Field International”, but even if it is presumed that same was leased out to “M/s Apple Field International”, through present bail petitioner in terms of lease dated 13.8.2016, such fact may not have any bearing/relevance because that rent deed was valid only for 11 months. Record clearly reveals that after expiry of lease deed dated 13.8.2016, which was admittedly inter-se present bail petitioner and Ram Swaroop, fresh lease was entered inter-se co-accused Ekta Tiwari and Ram Swaroop on 20.12.2016. Co accused Ekta Tiwari on the basis of aforesaid rent deed dated 20.12.2016 got herself allotted GST number in the name and style of M/s PEX International by showing on the papers that the registered office of M/s PEX is located in the godown from where contraband allegedly came to be recovered.

Having perused entire material on record, this Court finds that on the date of alleged raid i.e. 25.4.2019, premises in question stood leased out in favour of the co-accused Ekta Tiwari and as such, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period during trial, especially, when he has already suffered for more than one year and other co-accused save and except Attishore, who is absconding, already stand enlarged on bail. Challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly, held that one is deemed to be innocent till the time, his/her guilt is not proved in accordance with law. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions.

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, bail is not to be withheld as a punishment. 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.

The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; 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.”

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 or 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.”

The Hon’ble Apex Court in Prasanta Kumar Sarkar v. 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;

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

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

Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-

“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).

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 a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, 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. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. 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.

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.

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.

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.

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. 2,00,000/- 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.

(e) He shall handover passport, if any, to the Investigating Agency.

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.

Copy dasti.