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SANDEEP SHARMA, J. (ORAL) –

By way of instant petition filed under Section 439 of CrPC, prayer has been made by the bail petitioner namely Manish Kumar, who is behind bars since January, 2022, for grant of regular bail in case FIR No. 178 of 2022, dated 16.12.2022 under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short ‘Act), registered at Police Station Chowari, District Chamba, Himachal Pradesh.

2. Respondent-State has filed status report and ASI Pradeep Kumar has come present alongwith the records. Record perused and returned.

3. Close scrutiny of the status report as well as record made available to this Court reveals that on the date of the alleged incident, police party present at Tunhatti Barrier, intercepted vehicle bearing registration No.HP-73-8321, being driven by the present bail petitioner for checking. Allegedly, bail petitioner after having stopped vehicle for checking, fled away from the spot, however police after having associated Forest Guard namely, Jalam Singh, conducted search of the vehicle and allegedly recovered 3.518 Kg. of charas from the bag kept beneath the bags of maize being transported in the vehicle as detailed herein  above. However, subsequently, bail petitioner Manish Kumar himself surrendered on 2.1.2023, and since then, he is behind the bars.

4. During investigation, present bail petitioner allegedly disclosed to the police that on the date of alleged incident, person namely Yashwant Singh i.e. co-accused was also with him, but he had alighted from the vehicle in question at some distance from Tunhatti Barrier. On the basis of aforesaid disclosure statement made by the present bail petitioner, co-accused Yashwant Singh also came to be named in the FIR, but he stands enlarged on bail pursuant to order dated 11.9.2023 passed in Cr.MP(M) No. 2187 of 2023. Since investigation in the 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.

5. Mr. K.S. Gill, learned counsel representing the bail petitioner, vehemently argued that bail petitioner has been falsely implicated because at no point of time, he was apprehended during the alleged recovery of contraband from the vehicle allegedly driven by him. Mr. Gill, further submitted that as per own case of the police, driver of the offending vehicle was Yashwant Singh, who allegedly alighted from the vehicle before its interception at Tunhatti Barrier. He submitted that since co-accused Yashwant already stands enlarged on bail, he is also entitled to be enlarged on bail, especially when nothing remains to be recovered from him. Lastly, Mr. Gill, argued that bare perusal of order dated 17.12.2022 passed by the learned Judicial Magistrate First Class Dalhousie, District Chamba, under Section 52 of the Act, clearly reveals that only two samples of 26 grams each were drawn from the contraband allegedly recovered from the vehicle being driven by the petitioner that too without making entire bulk of contraband homogenous. While placing reliance upon judgment dated 1.8.2022 passed by the Division Bench of this Court in Cr.Appeal No. 427 of 2019, titled Jhallo Ram v. State, above named counsel vehemently argued that bail petitioner can only be held to be in possession of 52 grams of Charas by including the weight of other samples, which is a small quantity and as such, rigours of section 37 of the Act are not attracted and present petitioner deserves to be enlarged on bail.

6. While fairly acknowledging factum with regard to filing of Challan in the competent Court of law, Ms. Seema Sharma, learned Deputy Advocate General, submits that though nothing remains to be recovered from the bail petitioner, but keeping in view gravity of the offence alleged to have been committed by him, he does not deserve any leniency. She states that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner in connivance with co-accused Yashwant was transporting the commercial quantity of contraband in the offending vehicle and as such, it cannot be said that he has been falsely implicated. Learned Deputy Advocate General further contended that very fact of the petitioner’s fleeing from the spot at the time of the alleged recovery indicates towards his implication in the case. She states that otherwise also, petitioner cannot claim any parity with co-accused Yashwant because he was booked under Section 29 of the Act and has been ordered to be enlarged on bail on the ground that statement of co-accused cannot be made basis of arrest of other co-accused. Lastly, learned Deputy Advocate General argued that in the event of petitioner’s being enlarged on bail, he may not only flee from justice, but may again indulge in such activities and as such, his prayer for grant of bail may kindly be rejected.

7. Having heard learned counsel for the parties and perused material available on record, this Court finds that though vehicle was allegedly being driven by the petitioner on the date of the alleged recovery, but admittedly, at the time of recovery, if any, of contraband from the vehicle in question, petitioner was not present on the spot as he had allegedly fled away from the spot. Apart from above, this Court finds that as per story of the prosecution, present bail petitioner was owner of the vehicle, whereas co-accused Yashwant was driver, who stands enlarged on bail. Leaving everything aside, this court finds that at the time of drawing samples, entire bulk of contraband was not made homogenous. Though Ms. Sharma, learned Deputy Advocate General seriously disputed the aforesaid submission made by learned counsel for the petitioner, but having carefully perused order dated 17.12.2022, passed by the Judicial Magistrate First Class Dalhousie, this court finds that after weighing the contraband, which was 3.428kg, two samples of 26 grams each were drawn and remaining narcotic substance was put in the yellow, blue, green and white coloured carry bags. Aforesaid order passed under Section 52 of the Act, nowhere suggests that before drawing samples, entire bulk was made homogenous. If it is so, it would be premature at this stage to conclude that entire bulk of contraband was actually charas. Moreover, photographs placed on record and perused by this court from the record clearly reveals that charas allegedly recovered from the bag was in the shape of sticks and while samples were being drawn, only sticks from the bags were drawn and weighed on the scale. Division Bench of this Court in Jhallo Ram supra has held as under:

“26.Thus, from the entirety of evidence available on record, we are convinced that the sample of 26 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellant cannot be held to have been found in conscious possession of 5 k.g. 30 grams of charas. The appellant can only be held to be in possession of 26 grams or at the most 52 grams of charas by including the weight of other sample, which as per Act is small quantity.”

8. Since in the case at hand though quantity of charas allegedly recovered was shown to be 3.428kgs, but since only two samples of 26 grams each were sent to chemical examination that too without making the entire bulk homogenous, recovery, if any, from the bail petitioner can be said to be only of 52 grams, which is a small quantity. In view of above, rigours of Section 37 of the Act are otherwise not attracted in the present case.

9. There is another glaring aspect of the matter i.e. report of FSL (Annexure P-2), which clearly reveals that on opening the sealed cloth parcel, charas was found in the form of sticks bundle, sticks pieces and chunks and on weighing the contraband on electronic balance, weight was found to be 26 grams. Perusal of FSL report as taken note herein above further fortifies the case of the petitioner that before drawing samples, entire contraband was not made homogenous, rather two samples in the shape of sticks were weighed and sent for chemical analysis.

10. Though case at hand is to be decided by the court below in in the totality of evidence collected on record by investigating agency, but having noticed the glaring aspect of the matter, coupled with the fact that co-accused already stands enlarged on bail, 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 rigours of Section 37 of the Act are not attracted on account of recovery of small quantity. 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.

11. 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.

12. 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.

13. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

14. 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.

15. 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.

16. 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.

17. 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 furnishing bail bonds in the sum of Rs.5,00,000/- with two local sureties in the like amount each, 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.

18. 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.

19. 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.

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

Petition allowed.

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