Punjab-Haryana High Court
Sukhvinder Singh vs State Of Haryana on 8 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:086318
CRM-M-26972-2024
233 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-26972-2024
Date of Decision: 08.07.2024
Sukhvinder Singh ...Pe##oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. D.S. Virk, Advocate
for the pe##oner.
Mr. Vikrant Pamboo, Sr. D.A.G., Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta#on Sec#ons 041 04.02.2024 Ellenabad, District 17(b)/61/85 of NDPS Act Sirsa
1. The pe##oner, apprehending arrest 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, has come up before this Court under Sec#on 438 CrPC seeking an#cipatory bail.
2. In paragraph 11 of the bail pe##on, the accused declares criminal antecedents but in all the cases, he has been acquiBed.
3. Pe##oner's counsel prays for bail by imposing any stringent condi#ons and states that they would have no objec#on to the condi#ons. The pe##oner contends that custodial interroga#on and pre-trial incarcera#on would cause an irreversible injus#ce to the pe##oner and family.
4. State's counsel opposes the bail.
REASONING:
5. Prosecu#on case is being extracted from status report dated 02.07.2024 filed by concerned DySP which reads as follows:
"1. That brief facts are that on 04.02.2024, a police party, in a Govt. Vehicle No.HR-24-GV-1008, in connec!on with 1 1 of 9 ::: Downloaded on - 22-07-2024 14:57:23 ::: Neutral Citation No:=2024:PHHC:086318 CRM-M-26972-2024 deten!on and preven!on of Intoxicant/drugs was going from Mallekan to Ellenabad side, when the police party reached near village Poharka, then a person was seen coming on main road ahead 300 meters from main bus stand. A0er seeing the police vehicle, that person got nervous and started running in the side of village Poharka by turning back. On suspicion, the police party apprehended him and on asking about the reason for running, he failed to give any sa!sfactory reply. On asking the abovesaid person disclosed his name as Parhlad Singh son of Balwant Singh, resident of village Poharka, District Sirsa. On suspicion of having any intoxicant substance, a no!ce under sec!on 50 NDPS Act was served upon Parhlad Singh abovesaid. A0er receiving reply to no!ce under sec!on 50 NDPS Act, as per the desire of accused, Gaze7ed Officer appointed by the Deputy Commissioner Sirsa namely Sh. Satbir Singh, Principal of GGSSS, Nathusari Kalan, District Sirsa was telephonically requested to come at the spot. Mean!me, Vikas son of Amar Singh, resident of village Randhawa, District Sirsa, who was going from there on his Motorcycle was joined in the inves!ga!on a0er telling him about the facts of the case. A0er arrival of the Gaze7ed Officer, the search of accused was conducted in accordance with law on the direc!ons of Gaze7ed Officer. In search 1 kg 100 Gm Opium was recovered in transparent plas!c envelop hidden under white colour T-Shirt worn by Parhlad Singh under green Jacket. The case property was converted into sealed parcels as per rules. At the !me of recovery accused Parhlad Singh, abovesaid himself has told that the recovered Opium was purchased by him from Sukhvinder @ Deep, resident of Mallekan (present pe!!oner/accused) and I have to pay price of the same a0er selling the recovered Opium. As the accused Parhlad Singh was found in possession of 1 Kg 100 Gm of Opium and accused Sukhvinder @ Deep (present pe!!oner) has supplied/sold the same, accordingly a case FIR No.41, dated 04.02.2024, under sec!ons 17b/61/85 NDPS Act, Police Sta!on Ellenabad, District Sirsa/Annexure P- 1 was registered against both the accused i.e Parhlad Singh and Sukhvinder @ Deep (present pe!!oner).
2. That during the inves!ga!on case property 1 Kg 100 Gm Opium was taken in possession, site plan of place of recovery was prepared, statements of witnesses were recorded and accused Parhlad Singh was arrested at the spot. During further inves!ga!on on 05.02.2024, accused Parhlad Singh suffered disclosure statement and got demarcated the place of purchase of Opium from pe!!oner/accused Sukhvinder Singh @ Deep and got recovered his one Mobile OPPO Model No.CPH2375, which was used in commission of crime, in accordance with his disclosure statement. Translated copy of 2 2 of 9 ::: Downloaded on - 22-07-2024 14:57:24 ::: Neutral Citation No:=2024:PHHC:086318 CRM-M-26972-2024 disclosure statement and re-disclosure statement of accused Parhlad Singh are annexed as Annexure R-1 R-2."
6. The quan#ty allegedly involved in this case is not commercial. Given this, the rigours of S. 37 of the NDPS Act do not apply in the present case.
7. Sec#on 2 (vii-a) of the NDPS Act defines commercial quan#ty as the quan#ty greater than the quan#ty specified in the schedule. Sec#on 2 (xxiii-a) defines small quan#ty as a quan#ty less than the quan#ty specified in the table of the NDPS Act. The remaining quan#ty falls in an undefined category, generally called an intermediate quan#ty. All Sec#ons in the NDPS Act, which specify an offence, also men#on the minimum and maximum sentence, depending upon the quan#ty of the substance. The commercial quan#ty mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. When the quan#ty is less than commercial, the restric#ons of Sec#on 37 of the NDPS Act will not aBract, and the factors for bail become similar to the offence regular statutes.
8. In Sami Ullaha v Superintendent Narco#c Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quan#ty, the rigors of the provisions of Sec#on 37 may not be jus#fied.
9. The pe##oner is a first offender, and one of the relevant factors would be to provide an opportunity to course correct. Even a primafacie perusal of paragraph 3 of the bail pe##on needs considera#on for bail.
10. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons#tu#onal Bench of Supreme Court held that the bail decision must enter the cumula#ve effect of the variety of circumstances jus#fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en#tled to bail if the Court concerned concludes that the prosecu#on has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa#sfac#on for the need to release such person on bail, in the given fact situa#ons. The rejec#on of bail does not preclude filing a subsequent applica#on. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situa#on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no#ceably illustrated that the basic rule 3 3 of 9 ::: Downloaded on - 22-07-2024 14:57:24 ::: Neutral Citation No:=2024:PHHC:086318 CRM-M-26972-2024 might perhaps be tersely put as bail, not jail, except where there are circumstances sugges#ve of fleeing from jus#ce or thwar#ng the course of jus#ce or crea#ng other troubles in the shape of repea#ng offences or in#mida#ng witnesses and the like by the pe##oner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the pe##oner to avoid the course of jus#ce and must weigh when considering the ques#on of jail. So also, the heinousness of the crime. In Gudikan# Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega#ve criteria necessita#ng that course. In Prahlad Singh Bha# v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considera#ons. In Dataram Singh v State of UBar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is en#rely within the discre#on of the judge hearing the maBer and though that discre#on is unfeBered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi#ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
11. 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 v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (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. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Sec#on 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves#ga#on of the police. While exercising utmost restraint, the Court can impose condi#ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves#ga#on.
12. 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.
10. In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, 4 4 of 9 ::: Downloaded on - 22-07-2024 14:57:24 ::: Neutral Citation No:=2024:PHHC:086318 CRM-M-26972-2024 [10] The exponen#al growth in technology and ar#ficial intelligence has transformed iden#fica#on techniques remarkably. Voice, gait, and facial recogni#on are incredibly sophis#cated and pervasive. Impersona#on, as we know it tradi#onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus#ce, then in such cases, appropriate condi#ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
[21] In this era when the knowledge revolu#on has just begun, to keep pace with exponen#al and unimaginable changes the technology has brought to human lives, it is only fiRng that the dependence of the accused on surety is minimized by giving alterna#ve op#ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
13. 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:
(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 Inves#gator/SHO, before whom the bonds are required to be furnished. When the bonds are to be furnished before a Judicial Magistrate, then in case of the non-availability of the concerned Judicial Magistrate, to any other nearest Ilaqa Magistrate/duty Magistrate. Before accep#ng the surety, the concerned officer/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 inves#gator 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, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it 5 5 of 9 ::: Downloaded on - 22-07-2024 14:57:24 ::: Neutral Citation No:=2024:PHHC:086318 CRM-M-26972-2024 shall be permissible for the pe##oner to prepare an account payee demand draW favouring concerned Chief Judicial Magistrate for a similar amount.
(c). Such court shall have a lien over the funds 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). The pe##oner is to also execute a bond for aBendance 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 of this bail order.
(e). While furnishing personal bond, the pe##oner shall men#on the following personal iden#fica#on details:
1. AADHAR number
2. Passport number, (If available), when the aBes#ng officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
14. The pe##oner is directed to join the inves#ga#on within seven days and also as and when called by the Inves#gator. The pe##oner shall be in deemed custody for Sec#on 27 of the Indian Evidence Act. The pe##oner shall join the inves#ga#on as and when called by the Inves#ga#ng Officer or any Superior Officer; and shall cooperate with the inves#ga#on at all further stages as required. In the event of failure to do so, it will be open for the prosecu#on to seek cancella#on of the bail. Whenever the inves#ga#on occurs within the police premises, the pe##oner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
15. 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 6 6 of 9 ::: Downloaded on - 22-07-2024 14:57:24 ::: Neutral Citation No:=2024:PHHC:086318 CRM-M-26972-2024 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.
16. Pe##oner to comply with their undertaking made in the bail pe##on, made before this court through counsel as reflected at the beginning of this order. If the pe##oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic#m/complainant may file any such applica#on for the cancella#on of bail, and the State shall file the said applica#on.
17. Given the background of allega#ons against the pe##oner, it becomes paramount to protect the detec#on squads, their family members, as well as the members of society, and incapacita#ng the accused would be one of the primary op#ons un#l the filing of the closure report or discharge, or acquiBal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric#on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc#on]. 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 fiWeen days from today 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 acquiBal in this case, provided otherwise permissible in the concerned rules. Restric#ng firearms would ins#ll confidence in the vic#m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea#ng the offence.
18. In return for the protec#on from incarcera#on, the Court believes that the accused shall also reciprocate through desirable behavior. It is clarified that in case the pe oner does not mend his ways and repeats the offence or indulges in drugs, then in all future ma ers, the concerned courts shall keep it as a factor that this court had afforded a final opportunity to the pe oner to reform and live a normal life but did not mend his ways.
19. 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 7 7 of 9 ::: Downloaded on - 22-07-2024 14:57:24 ::: Neutral Citation No:=2024:PHHC:086318 CRM-M-26972-2024 not to indulge in criminal ac#vi#es. Otherwise, the bail bonds shall remain in force throughout the trial and aWer that in Sec#on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi#ons.
20. The condi#ons men#oned above imposed by this court are to endeavour that the accused tries to reform, does not repeat the offence and to ensure the safety of the society. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], 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."
21. All terms of this bail order shall be explained to the applicant in a language they can comprehend by the applicant's advocate and the officer in whose presence the applicant signs personal bonds.
22. If the pe##oner finds the 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 aWer taking cognizance, even to the 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.
23. This order does not, in any manner, limit or restrict the rights of the Police or the inves#ga#ng agency from further inves#ga#on as per law.
24. In case the Inves#gator/Officer-In-Charge of the concerned Police Sta#on arraigns another sec#on of any penal offence in this FIR, and if the new sec#on prescribes maximum sentence which is not greater than the sec#ons men#oned above, then this bail order shall be deemed to have also been passed for the newly added sec#on(s). However, suppose the newly inserted sec#ons prescribe a sentence exceeding the maximum sentence prescribed in the sec#ons men#oned above, then, in that case, the Inves#gator/Officer-In-Charge shall give the pe##oner no#ce of a minimum of seven days providing an opportunity to avail the remedies available in law.
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25. 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.
26. 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 a7est it to be a true copy. In case the a7es!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 a7es!ng bonds.
Pe%%on allowed in aforesaid terms. All pending applica#ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
08.07.2024
Jyo# Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
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