Punjab-Haryana High Court
Upashu Garg Alias Upanshu Garg vs State Of Punjab And Another on 11 May, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-20345-2023 in/and CRM-M-59326-2022 2023:PHHC:068310
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
111 CRM-20345-2023 in/and
CRM-M-59326-2022
Date of Decision: 11.05.2023
Upashu Garg @ Upanshu Garg ...Pe oner
Versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Ishan Gupta, Advocate for the pe oner.
Mr. Harsimar Singh Si a, DAG, Punjab.
Mr. Rajeev Anand, Advocate for respondent No. 2-CBI.
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ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons
51 22.02.2020 Sadar Dhuri, 22 of NDPS Act (29 of NDPS
District Sangrur Act added later on)
CRM-20345-2023
This is an applica on for preponing the main pe on, which is pending
for 13.07.2023.
For the reasons men oned in the applica on, the same is allowed and the main pe on is taken up for hearing on board today itself. CRM-M-59326-2022
1. The pe oner incarcerated for viola ng the above-men oned provisions of Narco cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap oned above, on the allega ons of dealing in 10000 tablets of Colovidol 100 SR; 5250 tablets containing E zolam; 1600 tablets containing Lorazepam; 1800 tablets of Chlordiazepoxide; and 850 tablets containing E zolam had come up before this Court under Sec on 439 CrPC seeking bail.
2. In end note 2 of the bail pe on, the accused declares that he has no criminal antecedents.
3. Pe oner's counsel prays for bail by imposing any stringent condi ons. The pe oner contends that the further pre-trial incarcera on would cause an irreversible JYOTI 2023.05.12 08:41 I attest to the accuracy and integrity of this order/judgment.
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CRM-20345-2023 in/and CRM-M-59326-2022 2023:PHHC:068310
injus ce to the pe oner and family.
4. While opposing the bail, the conten on on behalf of the State is that the quan ty of contraband involved in the case falls in the commercial category.
REASONING:
5. As per the pe oner and also as per the custody cer ficate, the pe oner's total custody exceeds two years and six months. The pe oner indisputably has no criminal antecedents and has already complete pre-trial custody exceeding two years and six months. Thus, he is en tled to bail based on Dheeraj Kumar Shukla v. The State of U ar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be a racted only when the three condi ons are fulfilled,
(a). The custody of more than 2 years and 6 months and the delay was not a ributable to accused.
(b). Trial is at an ini al stage.
(c) The pe oner is the first offender.
6. The pe oner fulfills all the three condi ons and thus, sec on 37 of NDPS Act
would not be a racted. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons.
7. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail, subject to the following terms and condi ons, which shall be over and above and irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
8. In Mahidul Sheikh v. State of Haryana, Neutral Cita on No: 2022:PHHC:003277, [ Para 53], [Law Finder Doc Id # 1933969], this Court observed, [53]. The pragma c approach is that while gran ng bail with sure es, the "Court" and the "Arres ng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or crea ng a lien over his bank account. The accused should also have a further op on to switch between the modes. The op on lies with the accused to choose between the sure es and deposits and not with the Court or the arres ng officer.
9. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above, in the following terms:
JYOTI 2023.05.12 08:41 I attest to the accuracy andintegrity of this order/judgment.2
CRM-20345-2023 in/and CRM-M-59326-2022 2023:PHHC:068310
(a). Pe oner to furnish personal bond of Rs. Ten thousand (INR 10,000/-); AND
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa sfac on of the concerned court, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned court must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b) Pe oner to hand over to the concerned court a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district. Said fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the pe oner's account.
(c). Such court shall have a lien over the deposit un l the case's closure or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). It shall be the total discre on of the pe oner to choose between surety bond and fixed deposit. It shall also be open for the pe oner to apply to the Inves gator or the concerned court to subs tute the fixed deposit with surety bonds and vice-versa.
(e). On the reverse page of personal bond, the pe oner shall men on her/his permanent address along with the phone number, preferably that number which is linked with the AADHAR, and e-mail (if any). In case of any change in the above par culars, the pe oner shall immediately and not later than 30 days from such modifica on, in mate about the change to the concerned police sta on and the concerned court.
(f). The pe oner is to also execute a bond for a endance in the concerned court(s) as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.
10. The pe oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the police, or the court, or to tamper with the evidence.
11. Within fi een days of release from prison, the pe oner shall procure a smartphone and inform its IMEI number and other details to the SHO/I.O. of the Police sta on men oned above. The pe oner shall always keep the phone loca on/GPS on the "ON" mode. Whenever the Inves ga ng officer asks to share the loca on, the pe oner shall immediately do so. The pe oner shall neither clear the loca on history, WhatsApp chats, call logs nor format the phone without permission of the JYOTI 2023.05.12 08:41 I attest to the accuracy and integrity of this order/judgment.
3CRM-20345-2023 in/and CRM-M-59326-2022 2023:PHHC:068310 concerned SHO/I.O. This condi on shall con nue ll the comple on of the trial or closure of case, whichever is earlier. If the pe oners fail to comply with this condi on, then on this ground alone. In that case, the bail might be canceled, and the complainant may file any such applica on for the cancella on of bail, and State shall file the said applica on.
12. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe oner shall surrender all weapons, firearms, ammuni on, if any, along with the arms license to the concerned authority within fi een days from release from prison and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case of acqui al in this case, provided otherwise permissible in the concerned rules.
13. During the trial's pendency, if the pe oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi on as s pulated in this order, it shall always be permissible to the respondent to apply for cancella on of this bail. It shall further be open for any inves ga ng agency to bring it to the no ce of the court seized of the subsequent applica on that the accused was earlier cau oned not to indulge in criminal ac vi es. Otherwise, the bail bonds shall remain in force throughout the trial and a er that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
14. The condi ons men oned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the society. In Mohammed Zubair v. State of NCT of Delhi, Writ Pe on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor onal to the purpose of imposing them. The courts while imposing bail condi ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi ons that would result in the depriva on of rights and liber es must be eschewed."
15. Any Advocate for the pe oner and the Officer in whose presence the pe oner puts signatures on personal bonds shall explain all condi ons of this bail order in any language that the pe oner understands.
16. If the pe oner finds bond amount beyond social and financial reach, it may be brought to the no ce of this Court for appropriate reduc on. Further, if the pe oner finds bail condi on(s) as viola ng fundamental, human, or other rights, or causing difficulty due to any situa on, then for modifica on of such term(s), the pe oner may file a reasoned applica on before this Court, and a er taking cognizance, even to the JYOTI 2023.05.12 08:41 I attest to the accuracy and integrity of this order/judgment.
4CRM-20345-2023 in/and CRM-M-59326-2022 2023:PHHC:068310 Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condi on.
17. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
18. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
19. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a est it to be a true copy. In case the a es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a es ng bonds.
Pe on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
11.05.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
JYOTI
2023.05.12 08:41
I attest to the accuracy and
integrity of this order/judgment.
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