IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.203 of 2019
Decided on: 8.3.2019

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Rehmat Ali ………..Petitioner
Versus
State of Himachal Pradesh ……….Respondent

Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Lakshay Parihar, Advocate.
For the Respondent : Mr. S.C. Sharma, Mr. Dinesh Thakur and

Mr. Sanjeev Sood, Additional Advocate
Generals with Mr. Amit Dhumal, Deputy
Advocate General.

Sandeep Sharma, Judge (oral):

Bail petitioner namely Rehmat Ali, has approached this

Court in the instant proceedings filed under Section 439 of Cr.PC, praying

therein for grant of regular bail in connection with FIR No. 25/18 dated

24.3.2018, under Sections 20, 25 and 29 of the NDPS Act and 181 of Motor

Vehicles Act, registered, at P.S. Dalhousie, District Chamba, H.P.

2. Sequel to order dated 6.2.2019, passed by this Court, ASI

Balwant Singh, I.O. P.S. Dalhousie, District Chamba, H.P., has come

present in Court alongwith record of the case. Mr. Dinesh Thakur, learned

Additional Advocate General, has also placed on record status report

prepared on the basis of the investigation carried out by the investigating

agency. Record perused and returned.

1

Whether the reporters of the local papers may be allowed to see the judgment?

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3. Close scrutiny of the record/status report reveals that on

24.3.2018, police party, which had laid Naka at Chhana Mor,

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apprehended two persons namely Faruq Mohd. and Bashir Mohd.,

carrying psychotropic substance. Since above named persons after

having seen police tried to run away from the spot, police apprehended

them and thereafter, recovered charas weighing about 3.87 kg. After

completion of necessary codal formalities, police registered case against

the above named persons under Sections 20, 25 and 29 of the NDPS Act

and 181 of Motor Vehcile Act on 24.3.2018 and since then, they are

behind the bars. During investigation, police found involvement of

present bail petitioner as well as present namely Bitu Ram, from whom,

allegedly accused persons namely Faruq Mohd. and Bashir Mohd.,

purchased charas recovered from their possession. During investigation,

police found that present bail petitioner helped the accused carrying

charas from Thalli Nakror to Channa Mor. As per Investigating Agency,

present bail petitioner, who drives Taxi/CAB, charged sum of Rs. 12,000/-

from the co-accused for dropping them from Thalli Nakror to Channa Mor.

Above named persons revealed during their investigation that present

bail petitioner asked them to pay sum of Rs.3,000/- per kg for dropping

them from Thalli Nakror to Channa Mor and as such, in the aforesaid

background, case under Section 25 of the NDPS Act, came to be

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registered against the bail petitioner and since 3.4.2018, bail petitioner is

behind the bars.

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4. Learned counsel for the petitioner while referring to the

record/status report strenuously argued that no case, if any, is made out

against the present bail petitioner under Section 25 of the Act. Learned

counsel contended that no contraband came to be recovered from the

possession of the bail petitioner and as such, no case, if any, could be

registered against him merely on the statements having been made the

accused persons, who were admittedly apprehended with charas

weighing 3.87 kg. He further contended that present bail petitioner, who

is a Taxi/CAB driver, on the askance of co-accused, Bashir Mohd, who is a

jeweler by profession, provided his Taxi for dropping them from Thalli

Nakror to Channa Mor. Mr. Parihar contended that since challan stands

filed in the competent court of law and nothing remains to be recovered

from the bail petitioner, no fruitful purpose would be served by keeping

the bail petitioner behind the bars, especially when he is totally innocent.

Mr. Parihar, further contended that there is no record from, where it can

be inferred that petitioner has been indulging in such like activities in past

also and as such, he being first offender deserves to be enlarged on bail.

Lastly, learned counsel for the petitioner contended that the bail

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petitioner is a local resident of the area and as such, there is no possibility

of his absconding from investigation and trial.

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5. Mr. Dinesh Thakur, learned Additional Advocate General,

while fairly acknowledging the factum with regard to completion of

investigation and filing of challan in the competent court of law

contended that keeping in view the gravity of offence alleged to have

been committed by the bail petitioner, he does not deserve any leniency.

Mr. Thakur, contended that case under Section 25 of the Act is clearly

made out against the petitioner because it has come in evidence that he

was in know of the fact that persons namely Faruq Mohd. and Bashir

Mohd., propose to carry contraband that too of commercial quality in his

vehicle from Thalli Nakror to Channa Mor. While referring to the record

record/status report, Mr. Thakur, contended that both the above named

accused, have categorically stated tin their statements that petitioner

charged Rs. 12,000/- from them for dropping them from Thalli Nakror to

Channa Mor, meaning thereby, bail petitioner actively participated and

connived with the accused persons, who were subsequently

apprehended with commercial quantity of the contraband.

6. Having heard learned counsel for the parties and perused

material available on record, this court finds that commercial quantity of

contraband came to be recovered from c-accused namely Faruq Mohd.

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and Bashir Mohd., who are behind the bars. It is none of the case of the

Investigating Agency that commercial quantity of contraband came to

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be recovered from the vehicle of the present bail petitioner, who before

recovery of aforesaid contraband dropped Faruq Mohd. and Bashir

Mohd., at Chhana Mor. In nutshell, case against the bail petitioner is that

he helped the co-accused transferring psychotropic substance, but case

under Section 25 of the Act, came to be registered against the bail

petitioner on the basis of statements having been made by the co-

accused namely Faruq Mohd. and Bashir Mohd., who in their statements

disclosed to the police that present bail petitioner charged sum of Rs.

3,000/ per kg from them for dropping them from Thalli Nakror to Channa

Mor. Factum with regard to charging of money/amount, as has been

stated by the co-accused, is yet to be proved in accordance with law by

the Investigating Agency. No doubt, there is evidence suggestive of the

fact that accused person travelled in taxi being driven by the present bail

petitioner before their arrest by the Investigating Agency, but merely

travelling of accused persons in the car being driven by the present bail

petitioner may not be sufficient to conclude involvement, if any, of the

present bail petitioner as far as commission of offence under Section 25 of

the Act is concerned, especially, when no recovery of contraband came

to be effected either from the person of the bail petitioner or his car.

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Though aforesaid aspects of the matter are to be considered and

decided by the court below on the basis of totality of evidence to be led

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on record by the Investigating Agency, but having perused material

available on record this Court sees no reason to allow the bail petitioner

to incarcerate in jail for an indefinite period, especially when he is behind

the bars for approximately one year. Guilt, if any, of the bail petitioner is

yet to be proved in accordance with law by leading cogent and

convincing evidence and as such, freedom of the bail petitioner cannot

be curtailed for an indefinite period.

r Otherwise also, It is also not in

dispute that bail petitioner is a first offender and local resident of the area,

who shall always remain available for investigation as well as trial as and

when required by the Investigating Agency.

7. Leaving everything aside, careful perusal of section 37 of the

Act, which prohibits the grant of bail to the person found carrying

commercial quantity of contraband suggests that person accused of

offence punishable under Sections 19, 24 or 27-A cannot be ordered to

be released on bail unless public prosecutrix is given opportunity to

oppose the application, if any, made for his release on bail. In the case

at hand, neither commercial quantity of contraband, came to be

recovered from the conscious possession of the present bail petitioner or

his car nor case, if any, came to be registered against him under Sections

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24 or 27-A of the Act and as such, rigors of section 37 are not attracted in

the present case.

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8. Recently, the Hon’ble Apex Court in Criminal Appeal No.

227/2018, Dataram Singh vs. State of Uttar Pradesh Anr., decided on

6.2.2018, has categorically held that freedom of an individual is of utmost

importance and same cannot be curtailed merely on the basis of

suspicion. Hon’ble Apex Court has further held that till the time guilt of the

accused is not proved in accordance with law, he is deemed to be

innocent. The relevant paras of the aforesaid judgment are reproduced

as under:

“2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences

but that is another matter and does not detract from the
fundamental postulate in respect of other offences. Yet
another important facet of our criminal jurisprudence is that
the grant of bail is the general rule and putting a person in jail
or in a prison or in a correction home (whichever expression

one may wish to use) is an exception. Unfortunately, some of
these basic principles appear to have been lost sight of with
the result that more and more persons are being incarcerated

and for longer periods. This does not do any good to our
criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely
the discretion of the judge considering a case but even so, the

exercise of judicial discretion has been circumscribed by a
large number of decisions rendered by this Court and by
every High Court in the country. Yet, occasionally there is a
necessity to introspect whether denying bail to an accused
person is the right thing to do on the facts and in the
circumstances of a case.

4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best

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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

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custody after a charge sheet is filed. Similarly, it is important to

ascertain whether the accused was participating in the
investigations to the satisfaction of the investigating officer and
was not absconding or not appearing when required by the
investigating officer. Surely, if an accused is not hiding from
the investigating officer or is hiding due to some genuine and

expressed fear of being victimised, it would be a factor that a
judge would need to consider in an appropriate case. It is also
necessary for the judge to consider whether the accused is a
first-time offender or has been accused of other offences and
if so, the nature of such offences and his or her general
conduct. The poverty or the deemed indigent status of an

accused is also an extremely important factor and even
Parliament has taken notice of it by incorporating an
Explanation to Section 436 of the Code of Criminal Procedure,
1973. An equally soft approach to incarceration has been
taken by Parliament by inserting Section 436A in the Code of

Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be

adopted by a judge, while dealing with an application for
remanding a suspect or an accused person to police custody
or judicial custody. There are several reasons for this including
maintaining the dignity of an accused person, howsoever
poor that person might be, the requirements of Article 21 of
the Constitution and the fact that there is enormous

overcrowding in prisons, leading to social and other problems
as noticed by this Court in In Re-Inhuman Conditions in 1382
Prisons.”

9. By now it is well settled that gravity alone cannot be decisive

ground to deny bail, rather competing factors are required to be

balanced by the court while exercising its discretion. It has been

repeatedly held by the Hon’ble Apex Court that object of bail is to secure

the appearance of the accused person at his trial by reasonable amount

of bail. The object of bail is neither punitive nor preventative. The Hon’ble

Apex Court in Sanjay Chandra versus Central Bureau of Investigation

(2012)1 Supreme Court Cases 49; wherein it has been held as under:-

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” 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

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an accused person will stand his trial when called upon. The
Courts owe more than verbal respect to the principle that

punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.
Detention in custody pending completion of trial could be a
cause of great hardship. From time to time, necessity demands

that some unconvicted persons should be held in custody
pending trial to secure their attendance at the trial but in such
cases, “necessity” is the operative test. In India , it would be quite
contrary to the concept of personal liberty enshrined in the
Constitution that any person should be punished in respect of any
matter, upon which, he has not been convicted or that in any

circumstances, he should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if left at liberty, save
in the most extraordinary circumstances. Apart from the question
of prevention being the object of refusal of bail, one must not lose
sight of the fact that any imprisonment before conviction has a
substantial punitive content and it would be improper for any

court to refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to refuse

bail to an unconvicted person for the propose of giving him a
taste of imprisonment as a lesson.”

10. Otherwise also, normal rule is of bail and not jail. Court has

to keep in mind nature of accusations, nature of evidence in support

thereof, severity of the punishment which conviction will entail, character

of the accused, circumstances which are peculiar to the accused

involved in that crime.

11. Law with regard to grant of bail is now well settled. The

apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra

and others, (2011) 1 SCC 694, while relying upon its decision rendered by

its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980)

2 SCC 565, laid down the following parameters for grant of bail:-

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“111. No inflexible guidelines or straitjacket formula can be
provided for grant or refusal of anticipatory bail. We are clearly of
the view that no attempt should be made to provide rigid and
inflexible guidelines in this respect because all circumstances and

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situations of future cannot be clearly visualized for the grant or
refusal of anticipatory bail. In consonance with the legislative

intention the grant or refusal of anticipatory bail should necessarily
depend on facts and circumstances of each case. As aptly
observed in the Constitution Bench decision in Sibbia’s case (supra)
that the High Court or the Court of Sessions to exercise their

jurisdiction under section 438 Cr.P.C. by a wise and careful use of
their discretion which by their long training and experience they are
ideally suited to do. In any event, this is the legislative mandate
which we are bound to respect and honour.

112. The following factors and parameters can be taken into

consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended
before arrest is made;

r (ii) The antecedents of the applicant including the fact as to

whether the accused has previously undergone
imprisonment on conviction by a Court in respect of any
cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused’s likelihood to repeat
similar or the other offences.

(v) Where the accusations have been made only with the
object of injuring or humiliating the applicant by arresting

him or her.

(vi) Impact of grant of anticipatory bail particularly in cases

of large magnitude affecting a very large number of
people.

(vii) The courts must evaluate the entire available material

against the accused very carefully. The court must also
clearly comprehend the exact role of the accused in the
case. The cases in which accused is implicated with the
help of sections 34 and 149 of the Indian Penal Code, the
court should consider with even greater care and caution
because over implication in the cases is a matter of
common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors

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namely, no prejudice should be caused to the free, fair and
full investigation and there should be prevention of
harassment, humiliation and unjustified detention of the
accused;

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(ix) The court to consider reasonable apprehension of

tampering of the witness or apprehension of threat to the
complainant;

(x) Frivolity in prosecution should always be considered and

it is only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail.”

(Emphasis supplied)

12. The Apex Court in Prasanta Kumar Sarkar versus Ashis

Chatterjee and another (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;

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

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

13. In view of the aforesaid discussion as well as law laid down

by the Hon’ble Apex Court, petitioner has carved out a case for grant of

bail, accordingly, the petition is allowed and the petitioner is ordered to

be enlarged on bail in aforesaid FIR, subject to his furnishing personal

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bond in the sum of Rs. 5,00,000/- with one local surety in the like amount to

the satisfaction of concerned Chief Judicial Magistrate/trial Court, with

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following conditions:

(a) He shall make himself available for the purpose of
interrogation, if so required and regularly attend the trial Court

on each and every date of hearing and if prevented by any
reason to do so, seek exemption from appearance by filing
appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper
the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any

person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to the Court or the Police
Officer; and

(d) He shall not leave the territory of India without the prior
permission of the Court.

14.

It is clarified that if the petitioner misuses the liberty or violate

any of the conditions imposed upon him, the investigating agency shall

be free to move this Court for cancellation of the bail.

15. Any observations made hereinabove shall not be construed

to be a reflection on the merits of the case and shall remain confined to

the disposal of this application alone. The petition stands accordingly

disposed of.

Copy dasti.

8th March, 2019 (Sandeep Sharma),
manjit Judge

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