While granting bail to an accused under the Narcotics Drugs and Psychotropic Substances Act, 1985, the Himachal Pradesh High Court said that it is highly unbelievable that the persons carrying a commercial quantity of contraband would keep documents relating to their identity in the same bag.
Justice Sandeep Sharma was of the view that this creates a suspicion about the correctness of the prosecution story; as usually, an identity card is kept in a purse or pocket, not in a bag that too with contraband. It observed,
"Once, the bail petitioner was found carrying the wallet; it is not understood, instead is highly unbelievable that a person would keep his driving license and Adhaar card in a bag containing the contraband. Had one of the accused kept his DL /Adhaar card in a contraband pack, this court may have accepted that version. Still, it is highly unbelievable that both the accused had kept their Adhaar Card and DL card in the bag, allegedly recovered by the police, containing a commercial quantity of the contraband."
A petition was filed under Section 439 of CrPC for the grant of bail filed under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act. The prosecution's case was that the police stopped a Volvo bus to check and found bags in possession of the accused persons. The accused persons then claimed that some unknown person handed over the bag to them to deliver it to someone in Delhi. It is also their case that DL, PAN Cards, and Adhaar Cards of both the accused were recovered from the bag containing the contraband,
Additional Advocate General Sudhir Bhatnagar while admitting the factum about the filing of challan in the competent court of law, contended that though nothing remains to be recovered from the present bail petitioner, he deserves no leniency.
There are eye-witness testimonies of the bus driver and conductor; however, they juxtaposed each other. The Court held that this causes serious doubt about the recovery of contraband from the petitioner's possession. It also found inconsistency in the prosecution story and the fard/recovery memo.
The Court noted that while both these witnesses admit their signatures on the recovery memo, they stated that their signatures were obtained on blank papers. Since the passengers sitting on the bus were pressurizing them to take the bus, they were allowed to take the bus.
Noting that financial transactions placed on record by the prosecution revealed that the present bail petitioner and co-accused transferred some amount to a cafe-owner in Himachal, Madhya Pradesh. However, the Court noted that it is not sufficient to conclude the bail petitioner's conspiracy, if any, in the case, especially when they expressly set up a case that they do tour, traveling, and event management business.
The Court noted that allegations of commercial quantity of contraband attract the rigor of Section 37. However, the Court noted that, on a bare perusal of Section 37 of the Act, it could be gathered that there is not a complete bar for this Court to grant bail in cases involving commercial quantity. Instead, in such cases, the court, after having afforded an opportunity of being heard by the public prosecutor, can proceed to grant bail in cases involving commercial quantity if it is satisfied that the accused has been falsely implicated and there is no likelihood of his indulging in such activities again during the trial.
For no reason to presume and believe that recovery is doubtful and perusal of the status report reveals that at present, no other stands registered against the bail petitioner under the Narcotic Drugs & Psychotropic Substances Act. It referred to judicial precedent in which it was held that until the guilt of a person is proved under the law, they are deemed to be innocent. No fruitful purpose would be served by keeping the bail petitioner behind bars for an indefinite period during the trial, especially when nothing remains to be recovered from him.
It referred to the case of Dataram Singh vs. State of Uttar Pradesh & Anr, where it was held that an individual's freedom can not be curtailed for an indefinite period, especially when their guilt is yet to be proved. In Sanjay Chandra v. Central Bureau of Investigation (2012), the SC held that gravity alone could not be a decisive ground to deny bail; instead, the court must balance competing factors while exercising its discretion. The top court has repeatedly held that the object of bail is to secure the accused person's appearance at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative.
The Court held that otherwise, the usual rule is bail and not jail. The apex court in Prasanta Kumar Sarkar v. Ashis Chatterjee and other various principles were laid down before granting of bai viz. prima facie case, nature, the gravity of accusation, punishment involved, apprehension of repetition of the offence, and witnesses being influenced.
Case Title: Ankit Ashok Nisar & Ors v. State of Himachal Pradesh
Citation : 2022 LiveLaw (HP) 10
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