Himachal Pradesh High Court
Deepanshu Gagat vs State Of H.P on 4 February, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 172 of 2021 .
Reserved on: 29.01.2021.
Date of Decision: Feb 4, 2021
Deepanshu Gagat ...Petitioner
Versus
State of H.P. ...Respondent
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1NO ____________________________________________________________________ For the petitioner: Mr. Anirudh Sharma Advocate.
For the respondent: Mr. Sudhir Bhatnagar, Additional
Advocate General with Ms. Seema
Sharma, Mr. Narender Singh Thakur
and Kamal Kant, Deputy Advocates
General and Mr. Manoj Bagga,
Assistant Advocate.
THROUGH VIDEO CONFERENCE
FIR Dated Police Station Sections
No.
257 06.12.2020 Solan, District Solan, 21 and 29 of
H.P. NDPS Act.
Anoop Chitkara, Judge.
The petitioner, a habitual offender, who is in custody under Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), is once again in prison w.e.f. 06.12.2020 for possessing 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 27.03 grams of Diacetylmorphine (heroin), has now come up before this Court under Section 439 of CrPC, seeking bail, on the grounds .
that the quantity of contraband allegedly seized is intermediate quantity and does not restrict bail, because the quantity greater than 250 grams of heroin (Diacetylmorphine) falls in the category of the commercial quantity; hence the restrictions for bail imposed in S. 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.
2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.
3. In Para -8 of the bail petition and status report mentions the following criminal history:
a) FIR No.203, dated 28.08.2020, registered under Section 39(1)(A) of HP Excise Act, Police Station Solan.
b) FIR No.241, dated 19.10.2020, registered under Section 39(1)(A) of HP Excise Act, Police Station Solan.
c) FIR No.15, dated 19.03.2020, registered under Sections376, 511, 354 read with Section 34 of IPC, read with Section 4 of POSCO Act and 66 of IT Act, Women Police Station, Solan.
4. Briefly, the allegations against the petitioner are that on 06.12.2020, police officials were conducting patrolling in the jurisdiction of aforementioned police station. At about 12:15 a.m., ::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 3 during night time, near Saproon Chowk, police noticed one Maruti Van, which was coming from Dohri Diwar side. The investigator .
signaled the van to stop, but instead of stopping, the driver took opposite turn and started to proceed. However, there were barricades, as such, the van could not cross. On this, police officials inspected the van and five persons were sitting in it. On inquiry, driver became perplexed and could not give satisfactory reply. However, he revealed his name as Dipanshu Gagat (A-1), petitioner herein, resident of Solan, persons sitting on front left seat disclosed his name as Manish and the persons sitting on the rear seat disclosed their names as Vipin (A-3), Vipin Mohan Bohra (A-4) and Priyanshu Bisht (A-5), respectively. This raised suspicion in the mind of the police officials and they started searching Maruti Van and from the dashboard, they detected a brown coloured substance. As it was night time, police cold not associate any independent witness, as such, the police after testing the substance through drug detection kit and tested it positive for heroin. Police also recovered a syringe of 1 ml injection. When the heroin weighed on electronic scale, it measured 7.03 grams. After that, the investigator conducted procedural requirements of NDPS act and Cr.P.C and arrested the accused persons. Based on these allegations, the Police registered the FIR mentioned above.
Forensic Laboratory also tested the sample as diacetylmorphine (heroin).
::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 45. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner .
and family.
6. On the contrary, the contention on behalf of the State is that the accused is a proven habitual offender, and given his past conduct; he is likely to repeat the offence. He further insists that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.
7. As far as criminal history is concerned, the status report reveals that a case under Section under Section 376 and 4 of POSCO Act and 66 of IT Act is pending against the accused. The presence of syringe reveals that the accused are drug dependent and as such, indulged in substance abuse. Regarding the pendency of 367 IPC case is concerned, in case said bail was with a condition of not repeating further offences, then it is for the State to file appropriate an application for cancellation of bail. However, this Court is not commenting anything in that regard, because it for the State to take a call and not for this Court. As far as the present case is concerned, given the quantity of heroin, being 7.05 grams, whereas, small quantity is less than 8 grams and it is very very close to the small quantity coupled with the fact that the petitioner is in custody for the last about two months and there is no justification to continue with his incarceration.
::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 58. In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in .
intermediate quantity, the rigors of the provisions of Section 37 may not be justified. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 15), this Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.
9. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
10. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge;
or when Courts quashed the FIR; the prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The ::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 6 criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information .
Reports, wherein the bail petitioner stands arraigned as an accused.
While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
11. Given the above reasoning, coupled with the peculiar facts and circumstances of the case, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
12. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another.
13. The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs.
Twenty-five thousand (INR 25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate ::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 7 having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa .
Magistrate.Before accepting the sureties, the concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before theCourt, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.
14. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of "Chief Judicial Magistrate, District Solan, H.P.,"
a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.
b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.
c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.
d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.
e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.
f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.
g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with ::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 8 surety bonds and vice-versa.
h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court .
shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.
15. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:
r to
a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.
b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.
c) The petitioner shall, within thirty days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the "ON" mode. Before replacing his mobile phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating officer asks him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone without permission of the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned SHO/I.O.
d) The petitioner shall not influence, browbeat, pressurize, ::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 9 make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper .
with the evidence.
e) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
f) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:
i. At the first instance, the Court shall issue the summons.
ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.
iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non- Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.
16. The petitioner shall surrender all firearms, ammunition, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case.
::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 1017. During the trial's pendency, if the petitioner commits any .
offence under NDPS Act, even if it involves small quantity, or any offence other than NDPS Act, where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, the State shallfile an appropriate application before this Court, seeking cancellation of this bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.
18. Any advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order, in vernacular and if not feasible, in Hindi.
19. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after 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 condition.
20. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.
::: Downloaded on - 04/02/2021 20:15:33 :::HCHP 1121. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial .
Court advert to these comments.
22. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
23. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
The petition stands allowed in the terms mentioned above.
Anoop Chitkara, VacationJudge.
February 04, 2021 (R.Atal) ::: Downloaded on - 04/02/2021 20:15:33 :::HCHP