1. By way of instant petition filed under Section 439 of the Code of Criminal Procedure (for short “Cr.P.C.”), the petitioner is seeking bail in case FIR No. 160/2021, dated 06.06.2021, registered at Police Station Balh, District Mandi, H.P., under Sections 18, 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act (for short “NDPS Act”).
2. Brief facts of the case are that the petitioner was arrested on 06.06.2021 in case FIR No. 160/2021, under Sections 18, 21 & 29 of the NDPS Act, registered at Police Station Balh, District Mandi, H.P. Thereafter, she preferred bail application No. 66 of 2021 and vide order dated 21.06.2021, she was granted bail by the Court of learned Special Judge-II, Mandi, District Mandi, H.P. After completion of investigation, a chargesheet was filed in the said case, i.e. Criminal Case No. 150/2021. However, on 04.08.2023, at about 1:30 P.M., when the petitioner was arrested at Gandhi Chowk, Mandi, she came to know that she had been declared as proclaimed offender vide order of the Court dated 28.04.2023, due to her failure to attend hearings in the said criminal case, but as per the petitioner she was never served in the said criminal case ever since she was released on bail. Thereafter, the petitioner moved another bail application before the learned Special Judge-II, Mandi, H.P., which was registered as Bail Application No. 245/2023 and vide order dated 11.08.2023, her bail application was dismissed, observing that she had violated the conditions of the bail order, which was granted to her vide order dated 21.06.2021 and she was declared proclaimed offender.
3. I have heard the learned counsel for the petitioner, learned Additional Advocate General for the respondent-State and carefully gone through the material available on record.
4. The case of the petitioner is that after registration of the case, initially the matter was listed for further orders till 04.11.2022 and thereafter the matter was listed for service of the parties for the first time on 21.11.2022. However, the petitioner had solemnized the marriage with Vijay Kumar, R/o VPO Bhangrotu, Tehsil & District Mandi, H.P. and due to differences with her husband, she was forced to leave her matrimonial house and she started residing with her mother at Village Nouru, Post Office Bhangrotu, Tehsil Balh, District Mandi, H.P. and the further case of the petitioner is that she never intended to abscond from the proceedings, as she was residing within the jurisdiction of the learned Court, however, she was never served in the said case.
5. The law with regard to grant of bail is well settled.
In Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 49, it has been held that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail and that every man is deemed to be innocent until duly tried and duly found guilty. Relevant portion of the aforesaid judgment reads 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 can be 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.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 this country, 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.
23. Apart from the question of prevention being the object of a 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 un- convicted person for the purpose of giving him a taste of imprisonment as a lesson.”
6. In Manoranjana Sinh alias Gupta Vs. CBI, (2017) 5 SCC 218, [LQ/SC/2017/191] the Hon’ble Apex Court reiterated the decision rendered in Sanjay Chandra’s case (supra) by holding as under:-
“16. This Court in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 SCC 40, [LQ/SC/2011/1492] also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an 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. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.”
7. Similar reiteration of law can be found in Dataram Singh Vs. State of Uttar Pradesh & Another, (2018) 3 SCC 22, [LQ/SC/2018/152] wherein it has been held that a person is believed to be innocent until found guilty and the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception. Relevant portion of the aforesaid judgment reads as under:-
“1. 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.
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4. 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.”
8. As observed earlier, the quantity of the contraband involved in the present case is 27.77 gms of opium, which is an intermediate quantity. Therefore, rigors of Section 37 of the NDPS Act are not applicable in this case. It is not in dispute that the petitioner was initially granted bail by the Court of learned Special Judge-II, Mandi, District Mandi, H.P. vide order dated 21.06.2021. It is also not in dispute that the petitioner was declared proclaimed offender vide order dated 28.04.2023 and she was arrested on 17.08.2023. Therefore, in view of the facts and circumstance of the present case, the present petition is allowed and the petitioner, who has been arrested by the police in case FIR No. 160/2021, dated 06.06.2021, registered at Police Station Balh, District Mandi, H.P., under Sections 18, 21 & 29 of the NDPS Act, shall be forthwith released on bail, subject to her furnishing fresh personal bond to the tune of Rs. 1,00,000/- (Rupees one lac), with one fresh surety in the like amount, to the satisfaction of learned Trial Court. This bail order is subject, however, to the following conditions:-
"(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;
(ii) that she will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing any facts to the Court or the police;
(iii) that she will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorise them in any manner;
(iv) that she will not repeat the offence, as is alleged to have been committed by him.
(v) that she will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.
(vi) that she will not leave India without prior permission of the Court."
9. Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.
10. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.
11. Petition stands disposed of in above terms, so also the pending application(s), if any.
