Mohar Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, namely Mohar Singh, who is behind the bars since 14.04.2023, has approached this Court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail in case FIR No. 51, dated 14.04.2023 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short “the Act”) registered at Police Station Rampur, District Shimla, Himachal Pradesh.

In terms of order dated 20.10.2023, Respondent-State has filed status report and HC Jaswant Gupta, P.S. Rampur, District Shimla, Himachal Pradesh has also come present with record. Record perused and returned.

As per story of the prosecution, on 14.4.2023, police party, while on patrolling duty, found one vehicle bearing registration No. HP-06C-2324 standing on NH-05, near Nogli, Tehsil Rampur, District Shimla. Since, after having seen police, persons sitting in the car got perplexed and threw something from the window, police deemed it necessary to conduct search of the vehicle as well as occupants. Since despite best efforts put in, no independent witness could be associated, police officials were compelled to effect search of the vehicle and they allegedly recovered 6.52 grams of chitta/heroin from the bag thrown from the window of the car. Since, no plausible explanation ever came to be rendered on record qua recovery of the contraband, FIR detailed hereinabove, came to be lodged against the present bail petitioner Mohar Singh and his son Chetan Chauhan and since then, both the occupants of the car are behind the bar. Since, investigation in this case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.

Mr. Manoj Pathak, learned counsel representing the bail petitioner vehemently argued that recovery, if any, of contraband never came to be effected from the conscious possession of the petitioner, rather the same was effected from the bag, allegedly, thrown on the road by the occupants of the car involved in the alleged incident. He submitted that investigation conducted by the police till date, if perused in its entirety, suggests that there were certain financial transactions inter se co-accused Chetan Chauhan and co-accused Sanjay Bhuria, but definitely, at no point of time, there was any kind of financial transaction or telephonic conversation inter se present bail petitioner and co-accused named herein-above. Mr. Pathak, further submitted that at the time of alleged recovery, bail petitioner was sitting in the car of his son, but that doesn't mean that he is also involved in illegal trade of narcotics, if any, being carried by his son. He submitted that since the contraband never came to be recovered from the conscious possession of the bail petitioner and in past, no case, much less under NDPS Act stands registered against him, he otherwise being first offender, deserves to be enlarged on bail.

While fairly admitting factum with regard to filing of challan in the competent court of law, Mr. Ramakant Sharma, learned Additional Advocate General, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by him, prayer having been made on his behalf for grant of bail deserves outright rejection. Mr. Sharma, while making this Court peruse the record contends that there is overwhelming evidence collected on record by Investigating Agency, suggestive of the fact that bail petitioner along with his son had been indulging in illegal trade of narcotics, as such, it may not be in the interest of justice to enlarge the bail petitioner on bail, who, in that event may again indulge in such like activities.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on the date of alleged incident, 6.52 grams of chitta/heroin was not recovered from the conscious possession of the bail petitioner, rather same was recovered from the bag allegedly thrown by the petitioner after seeing the police. It is none of the case of the prosecution that contraband as detailed herein was actually recovered from the bag lying outside the car. No doubt, evidence collected on record suggests that son of bail petitioner, namely, Chetan Chauhan, who is a co-accused, had been indulging in illegal trade of narcotics in past and he had financial transaction with co-accused Sanjay Bhuria and Rekha Chauhan, but such fact, if any, is not sufficient to conclude complicity of the bail petitioner, who otherwise being father of co-accused Chetan Chauhan, may be sitting in the car at the relevant time. There is nothing on record to suggest that bail petitioner along with his son had been indulging in illegal trade of narcotics in the past. No case, much less under NDPS Act, stands registered against the petitioner in the past. Similarly, there is nothing on record suggestive of the fact that the bail petitioner was in constant touch with the drug peddler namely Sanjay Bhuria or in that regard, he had received or transferred amount, if any, to Sanjay Bhuria, rather precise case of the prosecution is that co-accused Chetan Chauhan had been doing illegal trade of narcotics with aid and connivance of co-accused Sanjay Bhuria, from whom allegedly an amount of Rs.85.00 Lakh, was seized by the police. It is also not in dispute that the car, from which currency of Rs.65 Lakh was recovered at the time of alleged incident, belongs to co-accused Chetan Chauhan.

Leaving everything aside, this Court cannot lose sight of the fact that the recovery of contraband as detailed hereinabove, from the bag allegedly thrown by the bail petitioner from the window of the car is yet to be established on record by the prosecution by leading cogent and convincing evidence. It is not in dispute that aforesaid recovery was never effected in the presence of independent witnesses. Though, it has been claimed on behalf of the prosecution that nobody was available to be associated as independent witness before effecting recovery, but this Court cannot lose sight of the fact that road, i.e. Rampur-Nogli road is a busy road and heavy traffic continuously plies on that road, it is difficult to accept that on persuasion of police, nobody agreed to become a witness. Otherwise also, there is nothing on record to suggest that any attempt ever came to be made by the police to associate independent witness, if any from Nogli Bazar, especially when the recovery allegedly came to be effected at 4.30 P.M. Though, aforesaid aspect of the matter is to be considered and decided by the court below in the totality of evidence collected on record by the prosecution, but keeping in view the aforesaid glaring aspect of the matter, there appears to be no justification for this court to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for more than 7 months. Moreover, having taken note of the fact that an intermediate quantity of contraband came to be recovered, rigors of Section 37 are attracted. Co-accused Rekha Chauhan, who had allegedly sold contraband to Chetan Chauhan, already stands enlarged on bail. Interestingly, the case of the prosecution is that the contraband, recovered from the bag, allegedly thrown by the bail petitioner on the date of alleged incident, was actually sold by co-accused Rekha Chauhan to co-accused Chetan Chauhan. If it is so, it is not understood on what basis, petitioner has been named in the FIR. Had police recovered contraband from the car, it would have been justified in claiming that the petitioner along with Chetan Chauhan had been indulging in illegal trade of narcotics, but since, such recovery never came to the effected from the car, rather from the road, it would be too premature to conclude complicity of the bail petitioner in the alleged commission of offence punishable under Section 21 of the Act.

Otherwise also, 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. Guilt, if any, of bail petitioner is yet to be established and as such, there is no justification to curtail her freedom for indefinite period during trial. 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.

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.

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 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.5,00,000/-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;

(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 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.