2024:HHC:6089 REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA
Cr.MP(M) No.1163 of 2024
Reserved on: 29.07.2024
Announced on: 31.07.2024
__________________________________________________________
Vijay alias Keshav ......Petitioner
Versus
State of H.P. …Respondent
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting? Yes
For the petitioner: Mr. Anirudh Sharma, Advocate.
For the respondent: Mr. Rajat Chaudhary, Assistant
Advocate General.
Ranjan Sharma, Judge
ail petitioner, Vijay alias Keshav, [who is in
B
custody since 11.02.2024], has come up before this
Court seeking regular bail under Section 439 of the Code
of Criminal Procedure [hereinafter referred to as
‘Cr.P.C.’], for grant of bail originating from FIR No.26 of
2024, dated 06.02.2024, under Sections 21 & 29 of the
Narcotic Drugs and Psychotropic Substances Act, 1985,
[hereinafter referred to as ‘NDPS Act’] registered at
1 Whether reporters of Local Papers may be allowed to see the judgment?
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Police Station, Dharampur, District Solan [H.P.].
FACTUAL MATRIX:
2.
Case set up by Mr. Anirudh Sharma, learned
counsel for bail petitioner-accused [Vijay alias Keshav], is
that bail petitioner is innocent and he has been falsely
implicated and he has nothing to do with the commission
of the offence. It is further averred that the bail petitioner
is a resident of House No.27, Block No.2014, Sector 32-
C, Chandigarh [U.T.], is a responsible citizen and there is
no likelihood of his fleeing away from the investigation or
the trial. The bail petitioner has furnished undertakings
that in case he is released on bail, he shall appear in the
investigation and trial and shall not cause any
inducement, threat or promise to any person or persons
acquainted with the facts of the case. Another
undertaking has also been furnished that the bail
petitioner shall not commit any similar offence in future.
2(i). It is averred in the instant bail application that
the petitioner had filed an application for bail, before
Learned Trial Court i.e. Learned Special Judge-II, Solan,
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District Solan [H.P.], which was rejected on 20.04.2024,
Annexure P-1. Thereafter, the petitioner filed the second
bail application before this Court, which was withdrawn
on 23.05.2024, Annexure P-2. The petitioner filed the
third bail application before Learned Trial Court i.e.
Learned Special Judge-II, Solan [H.P.], on 29.05.2024,
Annexure P-3, which was also dismissed.
2(ii). The instant bail application also states that
the petitioner has no criminal antecedents. During the
pendency of the instant bail application, the petitioner
had moves a Cr.MP No.2403 of 2024, enclosing copies of
judgment dated 20.04.2024, Annexure A-1, whereby, the
main accused Nikita Dutt was enlarged on bail. Along
with this application an order dated 16.05.2024,
Annexure A-2, has also been enclosed, indicating that
second co-accused [Bishap Sain], has also enlarged on
bail by the Learned Trial Court.
2(iii). In the above background, the bail petitioner
has averred that the bail petitioner is ready to furnish
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surety and shall not tamper with the administration of
justice in any manner. Since the bail petitioner is in
custody since 11.02.2024, therefore, the instant bail
application was filed by sister of bail petitioner on his
behalf.
:
PROCEEDINGS BEFORE THIS COURT
3. The instant bail application [Cr.MP(M) No.1163
of 2024] was listed before this Court on 31.05.2024
when, on request of learned counsel for petitioner, the
same was adjourned and the matter was then listed on
28.06.2024 when, after hearing learned counsel for
petitioner and keeping in view the averments that the bail
petitioner has no connection whatsoever either by way of
CDR details or WhatsApp records or Bank transactions
inter se the bail petitioner with two accused, Bishap Sain
and Nikita Dutt. Therefore, this Court issued notice on
01.07.2024, directing the State Authorities to file the
Status Report in the matter. The instant bail application
was listed on 19.07.2024 when, State Authorities filed
Status Report dated 19.07.2024, which was taken on
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record and copy of the Status Report was furnished to
learned counsel for the petitioner who prayed for some
time to go through the same and make submissions.
Finally, on 29.07.2024, the matter was heard by this
Court.
:
STAND OF THE STATUS AUTHORITIES
4. The Status Report filed by State Authorities
dated 19.07.2024, narrates the sequence of events. The
Status Report reveals that on 06.02.2024, police party
headed by HHC Rajesh Kumar No.216, was on patrolling
duty in the Government vehicle bearing Registration
No.HP-14B-9570, towards Dharampur, Parwanoo, TTR
and when, at about 6:10 p.m. the police party received
information, when they were about one kilometer around
Sanwara Toll Plaza, that a vehicle bearing Registration
No.HP-33-0054 [Tigor] was coming from Panchkula to
Solan and the persons travelling in the said car were
carrying Heroin/Chitta. Accordingly, at about 7:30 p.m.
on 06.02.2024, police stopped the aforesaid vehicle, in
which Bishap Sain & Nikita Dutt were travelling. Police
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searched the aforesaid two persons in the presence of
witnesses as mandated by the norms and nothing was
found. However, the vehicle in which they were travelling
i.e. No.HP-33-0054 was searched by police party in which
a plastic pouch containing brown coloured round shaped
substance was recovered, which after weighing came out
to be 11 grams of Heroin/Chitta. The recovery memo was
prepared and thereafter Rukka was sent and FIR was
registered by police.
4(i). Consequent upon the recovery of 11 grams of
Heroin/Chitta from Bishap Sain & Nikita Dutt, as
referred to above, both the accused were arrested by
police on 07.02.2024, at about 02:50 a.m. (Night) and
thereafter both were produced before Learned
Jurisdictional Magistrate and then again on 09.02.2024
for preparation of the inventory as per norms.
4(ii). Consequent upon the arrest of main accused,
Bishap Sain & Nikita Dutt, on 07.02.2024 and during the
remand, both these accused reveal to police that they
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have purchased Heroin/Chitta from a person in Zirakpur
[Punjab], accordingly, the police party went to Zirakpur
[Punjab], but no such person could be traced.
4(iii). The Status Report reveal that on 10.02.2024,
the police party nabbed the bail petitioner, namely Vijay
alias Keshav, who is resident of House No.27, Block
No.2014, Sector 32-C, Chandigarh [U.T.] and he was
formally arrested on 11.02.2024 by the police. After his
arrest he was produced before Jurisdictional Magistrate
i.e. Additional Chief Judicial Magistrate, Kasauli, District
Solan, whereby, he was sent for four days police remand.
4(iv). During the period of remand of bail petitioner,
it transpired that the bail petitioner, Vijay alias Keshav,
had purchased Heroin/Chitta from Rahul of Zirakpur
[Punjab]. Thereafter, police took the bail petitioner to
Zirakpur [Punjab] to trace Rahul [Main Supplier], but no
such person was found by the police.
4(v). The Status Report indicates that the bail
petitioner, had resorted to WhatsApp voice calls and
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WhatsApp chats with the arrested accused, Bishap Sain
& Nikita Dutt, as referred to above. The Status Report
further reveals that bail petitioner as well as arrested
accused, Bishap Sain & Nikita Dutt, had adjusted their
respective phones by putting their mobiles on Disappear
Out Message Mode, due to which phones chats were
deleted.
4(vi). The Status Report further indicates that on
01.02.2024, the main accused Bishap Sain had
transferred an amount of Rs.1,000/- [Rupees One
Thousand] to bail petitioner, Vijay alias Keshav, through
Paytm online mode.
It is in this background Status Report was
filed and Learned State Counsel has prayed for dismissal
of bail application.
5. Heard Mr. Anirudh Sharma, Learned Counsel
for the petitioner as well as Mr. Rajat Chaudhary,
Learned Assistant Advocate General, for the Respondent
and have perused the available material.
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STATUTORY PROVISIONS:
6. In order to test, the claim, for enlargement on
bail, it is necessary to have a recap of the provisions
of Section 21 & 29 of the NDPS Act, which read as
under:-
“Section 21 of the NDPS Act reads as under:
21. Punishment for contravention in relation
to manufactured drugs and preparations-
Whoever, in contravention of any provision of
this Act or any rule or order made or condition
of licence granted thereunder, manufactures,
possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses
any manufactured drug or any preparation
containing any manufactured drug shall be
punishable ,--
(a) where the contravention involves small
quantity, with rigorous imprisonment for a
term which may extend to one year, or with
fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves
quantity, lesser than commercial
quantity but greater than small
quantity, with rigorous imprisonment
for a term which may extend to ten
years and with fine which may extend
to one lakh rupees;
(c) where the contravention involves
commercial quantity, with rigorous
imprisonment for a term which shall not be
less than ten years but which may extend
to twenty years and shall also be liable
to fine which shall not be less than one
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lakh rupees but which may extend to
two lakh rupees:
Provided that the court may, for reasons to
be recorded in the judgment, impose a fine
exceeding two lakh rupees.
29. Punishment for abetment and criminal
conspiracy.-
(1) Whoever abets or is a party to a criminal
conspiracy to commit an offence punishable
under this Chapter, shall, whether such
offence be or be not committed in
consequence of such abetment or in
pursuance of such criminal conspiracy, and
notwithstanding anything contained in section
116 of the Indian Penal Code (45 of 1860), be
punishable with the punishment provided for
the offence.
(2) A person abets, or is a party to a criminal
conspiracy to commit, an offence, within the
meaning of this section, who, in India abets
or is a party to the criminal conspiracy to
the commission of any act in a place without
and beyond India which-
(a) would constitute an offence if
committed within India; or
(b) under the laws of such place, is an
offence relating to narcotic drugs or
psychotropic substances having all the
legal conditions required to constitute it
such an offence the same as or analogous
to the legal conditions required to
constitute it an offence punishable under
this Chapter, if committed within India.
MANDATE OF LAW:
7. Notably, the offences under the NDPS Act
including Section 21 of the aforesaid Act, as in this
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case are cognizable, therefore, the claim of the suspect-
accused for post arrest bail-regular bail is to be
examined/tested within the parameters prescribed of the
Code of Criminal Procedure and also the broad para-
meters mandated by the Hon’ble Supreme Court
regulating grant of bail in Gurbaksh Singh Sibbia versus
State of Punjab (1980) 2 SCC 565, Ram Govind
Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ;
Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004)
7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish
Chatterjee, (2010) 14 SCC 496 ; reiterated in P
Chidambaram versus Directorate of Enforcement,
(2019) 9 SCC 24, mandating that the bail {anticipatory
or regular} is to be granted where the case is frivolous or
groundless and no prima facie or reasonable grounds
exists which lead to believe or point out towards
accusation ; and these parameters for regular bail have
been reiterated in Sushila Aggarwal versus State-NCT
Delhi, (2020) 5 SCC 01.
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7(i). While dealing with the case for grant of
regular bail, under Section 439 Cr PC, the three judges
bench of Hon’ble Supreme Court, after reiterating the
broad parameters, has held in Deepak Yadav versus
State of Uttar Pradesh, (2022) 8 SCC 559, in Para 25
that the nature of the crime has a huge relevancy, while
considering claim for bail.
7(ii). In the case of Ansar Ahmad versus State
of Uttar Pradesh, 2023 SCC Online SC 974, the
Hon’ble Supreme Court had expanded the horizon of
the broad parameters, which are to be primarily taken
into account, for considering the claim for regular bail
or anticipatory bail as under:
11. Mr. R. Basant, the learned Senior Counsel
appearing for one of the private respondents
that the Court while granting bail is not
required to give detailed reasons touching
the merits or de-merits of the prosecution
case as any such observation made by the
Court in a bail matter can unwittingly cause
prejudice to the prosecution or the accused at
a later stage. The settled proposition of law,
in our considered opinion, is that the order
granting bail should reflect the judicial
application of mind taking into
consideration the well-known parameters
including:
(i) The nature of the accusation weighing
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in the gravity and severity of the
offence;
(ii) The severity of punishment;
(iii) The position or status of the accused,
i.e. whether the accused can exercise
influence on the victim and the
witnesses or not;
(iv) Likelihood of accused to approach or
try to approach the victims/witnesses;
(v) Likelihood of accused absconding from
proceedings;
(vi) Possibility of accused tampering with
evidence;
(vii) Obstructing or attempting to obstruct
the due course of justice;
(viii) Possibility of repetition of offence if left
out on bail;
(ix) The prima facie satisfaction of the
court in support of the charge
including frivolity of the charge;
(x) The different and distinct facts of each
case and nature of substantive and
corroborative evidence.
12. We hasten to add that there can be
several other relevant factors which,
depending upon the peculiar facts and
circumstances of a case, would be required
to be kept in mind while granting or
refusing bail to an accused. It may be
difficult to illustrate all such circumstances,
for there cannot be any straight jacket
formula for exercising the discretionary
jurisdiction vested in a Court under
Sections 438 and 439 respectively of the
CrPC, as the case may be.
7(iii). In CBI versus Santosh Karnani, (2023) 6
SCALE 250, the Hon’ble Supreme Court has reiterated
the illustrative time tested broad parameters which are
required to be taken into account while considering
the prayer for bail ; which have recently been reiterated
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by the Hon’ble Supreme Court in the case of State
of Haryana versus Dharamraj, 2023 SCC OnLine SC
1085.
7(iv). This Court is also conscious of the fact that as
per the mandate of law, in Criminal Appeal No 3840 of
2023, titled as Saumya Churasia versus Directorate of
Enforcement, decided on 14.12.2023, while considering
the prayer for bail, though a Court, is not required to
weigh the evidence collected by the Investigating Agency
meticulously, nonetheless, the Court should keep in mind
the nature of accusation; the nature of evidence
collected; the gravity of offence; the role attributed to
each of the accused; the severity of punishment
prescribed for an offence(s); the character of the accused;
the possibility of securing presence of accused during the
trial; the apprehension of witnesses being tampered; the
possibility of accused causing any threat or inducement
to witnesses; by forming a prima facie opinion in the
context of above broad-parameters and by balancing the
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personal liberty of an accused vis-à-vis the societal
rights and interests; and without delving into merits, so
as to prevent any prejudice to either the accused or the
prosecution.
OBJECT OF NDPS ACT:
8. Even in order to examine the claim for
bail under the NDPS Act, this Court deems it necessary,
to have a recap of the Preamble of the NDPS Act, which
reads as under:
“An Act to consolidate and amend the law relating
to narcotic drugs, to make stringent provisions for
the control and regulation of operations relating to
narcotic drugs and psychotropic substances to
provide for the forfeiture of property derived from,
or used in, illicit traffic in narcotic drugs and
psychotropic substances, to implement the
provisions of the International Conventions on
Narcotic Drugs and Psychotropic Substances and
for matters connected therewith.”
8(i). While dealing with the object of the NDPS
Act, the Hon’ble Supreme Court in Durand Didier,
(1990) 1 SCC 95, has mandated that the devastating
menace of clandestine smuggling and illegal trafficking in
drugs and substances has led to drug addiction amongst
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a sizeable section of the society, the adolescents and the
youth.
8(ii). This Court is conscious of the fact that though
the rigors of Section 37(1)(b)(ii) of the NDPS Act, are not
applicable in offences relating to Small Quantity or
Intermediate Quantity but the fact remains, that the
offences under the NDPS Act are “cognizable offences”, in
terms of Section 37(1)(a) of the Act.
In normal parlance, the claim of an accused for
bail has to be examined and tested in the light of the
parameters mandated by the Hon’ble Supreme Court
from time to time. Merely, because the accusation relates
to either a small or Intermediate Quantity, shall neither
confer an automatic right nor a vested right of bail.
Involvement in offences relating to small or intermediate
quantity does not give a license or leverage to a person to
indulge in nefarious activities. The Court has to form an
opinion regarding the involvement of an accused, from
the Case Diary or the Status Report(s) or other available
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material, and in normal situations, aforesaid material
must prevail unless the same is contradicted and/or
overcome or is disproved by other evidence which on the
face of it casts doubt on the material(s) gathered by the
prosecution. Enlargement on bail merely because the
offence-accusation relates to small or Intermediate
Quantity, despite, the fact that the material on record
reveals the prima facie case or reasonable grounds shall
certainly result in adding wings to their flight and giving
leverage to such suspect-accused to continue, expand and
flourish in inhumane, prohibited, illegal and nefarious
activities. Persons including in these activities curtail the
fundamental right of a commoner to live with dignity, by
causing adversarial effect on his mental and physical
state, including health who fall prey to these activities.
8(iii). The exception to this principle, is that
the enlargement on bail {be it relates to either small
quantity or intermediate quantity of contraband} can be
extended, on case to case basis, when the available
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material does not points towards the prima facie
involvement and the past conduct being unblemished,
subject to the fulfillment of other broad parameters,
mandated by the Hon’ble Supreme Court, from time to
time as detailed herein.
ANALYSIS OF CLAIM IN INSTANT CASE
9. Notwithstanding the rejection of earlier bail
applications by Learned Trial Court on 01.03.2024 and
on 24.05.2024 [Annexures P-1 & P-2], dismissing the
same, this Court proceeds to examine the prayer of
petitioner for bail in the instant case.
10. After taking into consideration the entirety
of the facts and circumstances of the case; and the
material on record; and the statutory provisions, and
the mandate of law; as referred to above, this Court is of
the considered view that the bail petitioner [Vijay alias
Keshav], is entitled to be enlarged on bail, for the
following reasons:-
10(i). No prima facie accusation is made out against
the bail petitioner.
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10(ii). The material on record, which is borne out
from the Status Report, does not reveal any reasonable
grounds to believe the accusation against the bail
petitioner.
The Status Report filed by State Authorities
dated 19.07.2024, indicates that police arrested two
persons, namely, Bishap Sain & Nikita Dutt, after
searching their vehicle, in which 11 grams of
Heroin/Chitta was recovered on 06.02.2024 [Night] and
consequent upon their arrest on 07.02.2024 at about
02:50 a.m. [Night] and the bail petitioner has no
connection with two arrested persons namely, Bishap
Sain & Nikita Dutt.
During investigation, on disclosure by Bishap
Sain & Nikita Dutt, arrested accused, the police was
informed that both the accused had purchased the
Heroin/Chitta from a person at Zirakpur [Punjab]. That
being so, once the Heroin/Chitta was purchased by
a person at Zirakpur [Punjab] then, it appears to be
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highly improbable as to why and what basis the police
implicated and arrested the bail petitioner [Vijay alias
Keshav] on 11.02.2024, who is a resident of House
No.27, Block No.2014, Sector 32-C, Chandigarh [U.T.].
The Status Report reveals that bail petitioner
[Vijay alias Keshav] was arrested allegedly, on the
disclosure made by two arrested accused Bishap Sain &
Nikita Dutt, before the police.
10(iii). Leaving everything aside, there is no doubt
that the petitioner herein has been booked under Section
29 of NDPS Act, that too on the basis of statement of
co-accused coupled with the fact that there is no other
supportive material on record, in the Status Report,
either by way of CDRs or Bank Transactions or
otherwise, revealing any connection of the bail petitioner
[Vijay alias Keshav] with the two accused Bishap Sain &
Nikita Dutt, therefore, in view of the mandate of the
Hon’ble Apex Court, in case, titled as Tofan Singh vs.
State of Tamil Nadu, (2021) 4 SCC 1, the disclosure
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statement, in absence of any other supportive material is
inadmissible in following terms:-
“155. Thus, to arrive at the conclusion that a
confessional statement made before an officer
designated under section 42 or section 53 can
be the basis to convict a person under the
NDPS Act, without any non obstante clause
doing away with section 25 of the Evidence
Act, and without any safeguards, would be a
direct infringement of the constitutional
guarantees contained in Articles 14, 20(3) and
21 of the Constitution of India.
156. The judgment in Kanhaiyalal (supra) then goes
on to follow Raj Kumar Karwal (supra) in
paragraphs 44 and 45. For the reasons stated
by us hereinabove, both these judgments do
not state the law correctly, and are thus
overruled by us. Other judgments that
expressly refer to and rely upon these
judgments, or upon the principles laid down by
these judgments, also stand overruled for the
reasons given by us.
157. On the other hand, for the reasons given by us
in this judgment, the judgments of Noor Aga
(supra) and Nirmal Singh Pehlwan v. Inspector,
Customs (2011) 12 SCC 298 are correct in law.
158. We answer the reference by stating:
(i) That the officers who are invested with
powers under section 53 of the NDPS Act
are “police officers” within the meaning of
section 25 of the Evidence Act, as a result of
which any confessional statement made to
them would be barred under the provisions
of section 25 of the Evidence Act, and
cannot be taken into account in order to
convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67
of the NDPS Act cannot be used as a
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confessional statement in the trial of an
offence under the NDPS Act.”
After taking into account the entirety of the
facts and circumstances, as referred to above, the
accusation against the bail petitioner is not made out,
at this stage.
11. The State Authorities could not implicate the
bail petitioner, by arresting him on 11.02.2024, merely
on the basis of an Online-Paytm Transaction of
Rs.1,000/- [Rupees One Thousand] on 01.02.2024,
allegedly between the arrested accused Bishap Sain and
alleging the said transaction to be with the bail
petitioner.
The above plea of the State Authorities, is on
the face of perverse when, a perusal of Paytm-Online
transaction entry dated 01.02.2024, reveals that the
aforesaid Paytm Transaction was between accused,
Bishap Sain with one Bains Service Station and the
aforesaid entry has nothing to do with the bail petitioner,
Vijay alias Keshav, in the instant case.
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The facts in the Status Report, implicating the
bail petitioner, on the stray entry of Paytm transaction of
Rs.1,000/- cannot be made the basis for detaining the
bail petitioner needlessly, in view of law laid down by
Hon’ble Supreme Court in Special Leave to Appeal
[CRL] No.5822/2024, titled as Jeet Ram vs State of
Himachal Pradesh, to support his contention, which
reads as under:-
“3. The appellant is charged with the offences
punishable under Sections 21 and 29 of the
Narcotic Drugs and Psychotropic Substances
Act, 1985. Heroin of the quantity of 8.54 grams
was recovered from the co-accused. We have
perused the allegations contained in the charge-
sheet against the appellant. The allegation
seems to be that there was a transaction
between the appellant and the co-accused
under which a sum of Rs.1,000/- was
transferred by the appellant to the co-
accused by Google Pay.”
In the background of the mandate of law in the
case of Jeet Ram, (supra) once the petitioner-accused,
Jeet Ram, was released on bail, keeping in view the
meagre/stray entry of transfer of Rs.1,000/- by Google
Pay account, as in this case.
In the above background, stray entry of Paytm
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of Rs.1,000/- only, cannot be sole basis for inferring the
connection of bail petitioner with two arrested persons
Bishap Sain & Nikita Dutt, as referred to above.
11(i). Admittedly, once, the contraband and
Heroin/Chitta of 11 grams was recovered from two
accused, Bishap Sain & Nikita Dutt, who were arrested
by police on 07.02.2024 and there is nothing on record
to point out that the bail petitioner had any involvement
in the aforesaid recovery or illicit trafficking, then, the
accusation is not made out against the bail petitioner, at
this stage. Further, the fact as to whether, the bail
petitioner had remitted/transferred the amount of
Rs.1,000/- by ways of Paytm to arrested accused Bishap
Sain is a matter, which is yet to be proved in accordance
with law during the trial. The detention of bail petitioner,
on the basis of mere stray-single Paytm entry of
Rs.1,000/-, which is yet to be proved during the trial, in
accordance with law in considered view of this Court
shall certainly amount to implicating the bail petitioner,
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on the basis of mere conjectures or suspicion, which is
yet to be proved. Unless and until the accusation is
proved during the trial, the bail petitioner is to be
treated innocent in the eyes of law, in view of the
mandate of Hon’ble Supreme Court in Guddan alias
Roop Narayan Versus State of Rajasthan, 2023 SCC
OnLine SC 1242, has outlined that the object of bail is
neither punitive and preventative, in the context of
Article 21 of the Constitution of India, in following
terms:-
“11. In the case of Sanjay Chandra V. Central
Bureau of Investigation, (2012) 1 SCC 40,
while hearing a bail Application in a case of an
alleged economic offence, this court held that
the object of bail is neither punitive nor
preventative. It was observed as under:
"21.In bail applications, generally, it has
been laid down from the earliest times that
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 is 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.
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23. 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
purpose of giving him a taste of
imprisonment as a lesson.
25. The provisions of CrPC confer discretionary
jurisdiction on criminal courts to grant
bail to the accused pending trial or in
appeal against convictions; since the
jurisdiction is discretionary, it has to
be exercised with great care and
caution by balancing the valuable right
of liberty of an individual and the
interest of the society in general. In our
view, the reasoning adopted by the learned
District Judge, which is affirmed by the
High Court, in our opinion, is a denial of
the whole basis of our system of law and
normal rule of bail system. It
transcends respect for the requirement
that a man shall be considered innocent
until he is found guilty. If such power is
recognised, then it may lead to chaotic
situation and would jeopardise the
personal liberty of an individual.
27. This Court, time and again, has stated that
bail is the rule and committal to jail an
exception. It has also observed that
refusal of bail is a restriction on the
personal liberty of the individual
guaranteed under Article 21 of the
Constitution."
12. Further, in the case of Sandeep Jain v.
National Capital Territory of Delhi, (2000) 2
SCC 66, this Court, while hearing a bail
application held that conditions for grant
of bail cannot become so onerous that
their existence itself is tantamount to
refusal of bail. This Court held as under:
2024:HHC:6089 REPORTABLE
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"We are unable to appreciate even the first
order passed by the Metropolitan
Magistrate imposing the onerous condition
that an accused at the FIR stage should
pay a huge sum of Rs. 2 lakhs to be set at
liberty. If he had paid it is a different
matter. But the fact that he was not able to
pay that amount and in default thereof he
is to languish in jail for more than 10
months now, is sufficient indication that
he was unable to make up the amount.
Can he be detained in custody endlessly
for his inability to pay the amount in the
range of Rs.2 lakhs? If the cheques issued
by his surety were dishonoured, the Court
could perhaps have taken it as a ground
to suggest to the payee of the cheques
to resort to the legal remedies provided
by law.
Similarly if the Court was dissatisfied
with the conduct of the surety as for his
failure to raise funds for honouring the
cheques issued by him, the Court could
have directed the appellant to substitute
him with another surety. But to keep
him in prison for such a long period,
that too in a case where bail would
normally be granted for the offences
alleged, is not only hard but improper.
It must be remembered that the Court has
not even come to the conclusion that the
allegations made in the FIR are true. That
can be decided only when the trial
concludes, if the case is charge-sheeted by
the police."
In the backdrop of the mandate of law
in Guddan alias Roop Narayan (supra) since neither
any prima facie accusation nor reasonable grounds
exist, then, the detention of the bail petitioner will
lead to deprivation of liberty of the bail petitioner.
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11(ii). While dealing with the concept of bail and
personal liberty of an accused under Article 21 of
the Constitution of India, the Hon’ble Supreme Court,
in Criminal Appeal No.2787 of 2024, titled
as Javed Gulam Nabi Shaikh Versus State of
Maharashtra and Another, Hon’ble Apex Court, held
as under:-
“18 Criminals are not born out but made. The
human potential in everyone is good and so,
never write off any criminal as beyond
redemption. This humanist fundamental is
often missed when dealing with delinquents,
juvenile and adult. Indeed, every saint has a
past and every sinner a future. When a crime is
committed, a variety of factors is responsible
for making the offender commit the crime.
Those factors may be social and economic, may be,
the result of value erosion or parental neglect; may
be, because of the stress of circumstances, or the
manifestation of temptations in a milieu of
affluence contrasted with indigence or other
privations.
19 If the State or any prosecuting agency including
the court concerned has no wherewithal to
provide or protect the fundamental right of an
accused to have a speedy trial as enshrined
under Article 21 of the Constitution then the
State or any other prosecuting agency should
not oppose the plea for bail on the ground that
the crime committed is serious. Article 21 of
the Constitution applies irrespective of the
nature of the crime.
20 We may hasten to add that the petitioner is still
an accused; not a convict. The over-arching
postulate of criminal jurisprudence that an
accused is presumed to be innocent until
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proven guilty cannot be brushed aside lightly,
howsoever stringent the penal law may be.
21 We are convinced that the manner in which the
prosecuting agency as well as the Court have
proceeded, the right of the accused to have a
speedy trial could be said to have been infringed
thereby violating Article 21 of the Constitution.
22 In view of the aforesaid, this appeal succeeds
and is hereby allowed. The impugned order passed
by the High Court is set aside.”
12. Notably, once the two main accused, Bishap
Sain & Nikita Dutt, from whom the contraband was
recovered and were arrested have been enlarged on bail
by the Learned Trial Court, therefore, the bail petitioner
[Vijay alias Keshav] who at this stage, nowhere connected
with the alleged offence and no recovery has been made
and nothing has been spelt out or placed on record
connecting the bail petitioner with the accusation,
therefore, on the principle of parity between the bail
petitioner and two other co-accused, petitioner deserves
to be enlarged on bail on this ground also.
13. The Status Report does not point out that any
adversarial circumstance, objecting to the detention of
bail petitioner, at this stage.
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14.
The Status Report indicates that investigation
is complete and the challan has been presented before
the jurisdictional Court on 04.04.2024. Even, the Status
Report does not point out any criminal antecedents of
the bail petitioner. Moreover, once the recovery of 11
grams of Heroin/Chitta was made from Bishap Sain &
Nikita Dutt on 06.02.2024 for which they were arrested
on 07.02.2024 and the bail petitioner [Vijay alias Keshav]
was neither travelling with them and had no connection
with these two accused and no recovery was made from
bail petitioner at any point of time with respect to the
accusation in the instant case then, in absence of any
material connecting the bail petitioner with the
recovery, sale, purchase, transportation or inter-state
import of Heroin/Chitta/Contraband then the
accusation is not borne out against the bail petitioner, at
this stage.
CONCLUSION:
15. In view of the above discussion, the instant
petition is allowed, and the State Authorities are
2024:HHC:6089 REPORTABLE
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directed to enlarge the petitioner [Vijay alias Keshav] on
bail, subject to observance of the following conditions:-
(i) Respondent-State Authorities shall release the
bail petitioner [Vijay alias Keshav] on furnishing
personal bond and surety bond to the tune of
Rs.1,00,000/- [Rupees One Lac] each to the
satisfaction of Learned Trial Court concerned;
(ii) Petitioner shall abide by all other conditions, as
may be imposed by the Learned Trial Court, if
any, in view of this order;
(iii) Petitioner shall neither involve himself nor shall
abet the commission of any offence hereinafter.
Any involvement or abetting shall entail the
withdrawal of concession in terms of this order.
(iv) Petitioner shall disclose his functional E-Mail
IDs/WhatsApp number and that of his surety to
the Learned Trial Court.
(v) Petitioner shall not hinder the smooth
flow of the investigation and shall join the
investigation, as and when called, by the
Investigating Agency;
(vi) Petitioner shall not jump over the bail and also
shall not leave the country without prior
information of the Court;
(vii) Petitioner shall not tamper with the witnesses
or the evidence in any manner;
(viii) Petitioner shall not directly or indirectly make
any inducement, threat or promise to any
person acquainted with the facts of the case or
the witnesses;
(ix) It is clarified that violation of any of the
conditions imposed hereinabove, shall entail
cancellation of bail automatically; and
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(x) State Authorities are free to move this Court for
alteration/modification of this Court, for
violation as in (i) to (iv) supra, in the facts and
circumstances, so necessitates, at any time
herein-after.
16. The observations made in this judgment shall
not be construed in any manner as an indictive of
findings, for or against the parties herein, either for
the purpose of investigation or for trial, thereafter, in
any manner, which shall proceed, independent of any
of the observations herein, in accordance with law.
17. Petitioner is permitted to produce/use copy of
this order, downloaded from the web-page of the High
Court of Himachal Pradesh, before the authorities
concerned, and the said authorities shall not insist for
production of a certified copy, but if required, may verify
passing of order from Website of the High Court.
Pending application(s), if any, shall
also stand disposed of.
(Ranjan Sharma)
Judge
Digitally signed by TARUN MAHAJAN
TARUN
July 31, 2024
DN: C=IN, O=HIGH COURT OF HIMACHAL
PRADESH, OU=HIGH COURT OF HIMACHAL
PRADESH SHIMLA, Phone=
(Shivender)
887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f
82efd8f56ec39f8e6b442b68, PostalCode=
MAHAJA
171001, S=Himachal Pradesh,
SERIALNUMBER=
3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7
d66b105bbf507179673109f5, CN=TARUN
MAHAJAN
N
Reason: I am the author of this document
Location: 12345678
Date: 2024.07.31 17:38:40+05'30'
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