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[Cites 12, Cited by 0]

Himachal Pradesh High Court

Ajay Kumar vs State Of Himachal Pradesh on 5 November, 2020

Author: Anoop Chitkara

Bench: Anoop Chitkara

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     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                              Cr.MP(M) No. 1948 of 2020




                                                                        .
                              Date of Decision : 5.11.2020





Ajay Kumar
                                                              ...Petitioner.





                              Versus
State of Himachal Pradesh
                                                             ...Respondent.





Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.


For the petitioner    :      Mr. Pawan Gautam, Advocate.


For the respondent    :      Mr. Nand Lal Thakur, Additional Advocate General, for the


                             State.

       COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE
Anoop Chitkara, Judge (oral)

An under-trial prisoner, in custody since 27.7.2020, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Sections 21, 61, 85 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for possessing 6.70 grams of heroin (Diacetylmorphine).

2. The police arrested the petitioner, in FIR No. 97 of 2020, dated 27.7.2020, registered under Sections 21, 61, 85 of the NDPS Act, in Police Station, Damtal, District Kangra, Himachal Pradesh, disclosing cognizable and non-bailable offenses. Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Judge. However, vide order dated 11.9.2020, Ld. Special Judge-II, Kangra at 1 Whether reporters of Local Papers may be allowed to see the judgment?

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Dharamshala, District Kangra, HP, dismissed the petition, primarily because the petitioner was involved in similar activities earlier also.

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3. The petitioner's criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years: An analysis of the contents of the petition and the status report reveals the following criminal history:

(I) FIR No.148/18 dated 10.6.2019, under Sections 21, 61, 85 of the NDPS Act, registered at Police Station, Indora, District Kangra;
(ii) FIR No.167/2019 dated 10.12.2019, under Sections 21, 61, 85 of the NDPS Act, registered at Police Station Damtal, District Kangra;
(iii) FIR No.14/2006 dated 18.1.2006, under Sections 61-1-14 of the Excise Act; and
(iv) FIR No.46/2013 dated 12.2.2013, under Sections 61-1-14 of the Excise Act, registered at Police Station, Indora, Distrcit Kangra.

4. Briefly, the allegations against the petitioner are that on 27.7.2020, the Investigating Officer was on patrolling duty within the jurisdiction of Police Station, Indora, Distirct Kangra, alongwith other Police Officials. At around 6:20 p.m., when the Police Officials had parked their vehicle on the roadside, then one person namely Ajay Pathania came and stopped his vehicle. Since he was already known to the Investigating Officer, as such, he got down from his vehicle and started talking to them.

Thereafter, the President of the Gram Panchayat reached there on his scooty. In the meanwhile, the police noticed one person walking from Indora Mode side. On noticing the police officials, the said person abruptly turned back and clandestinely took out a pouch from the pocket of his nicker and threw it in the bushes on the roadside. After that, he started running back. It raised suspicion in the mind of the Police and the Investigating Officer nabbed him in the presence of police officials and other witnesses ::: Downloaded on - 05/11/2020 20:21:39 :::HCHP 3 and inquired him. He disclosed his name as Ajay Kumar @ Bunty, son of Shri Rajinder Pal, R/o VPO Chhanni, Tehsil Indora, District Kangra, aged 36 years old (petitioner herein). When the police officials inquired from him the reasons of his getting .

perplexed and running back, he could not given any satisfactory answers to such questions. After that, the police officials took out the polythene pouch which he had thrown out in the bushes and it was zipper polythene bag and on opening it contained brown coloured substance. After checking the same from drug deduction kit which tested positive for heroin. Subsequently, police weighed it in the electronic machine and it was found to be 6.70 grams. After that, police completed the procedural requirements under the NDPS Act and sealed the said substance and send to the Police Station for registration of the FIR and subsequently arrested the accused. After that, the police officials send the substance to chemical laboratory for testing and after testing the laboratory declared the same to be diacetylmorphine (Heroin).

5. I have heard Mr. Pawan Gautam, learned counsel for the petitioner. The learned counsel submits that the quantity involved is 6.70 grams and despite the fact that there are three cases pending against the petitioner, but out of those, only one case is under NDPS Act. Regarding two cases, he states that the quantity of substance involved in those cases is 3.66 grams and 6.32 grams of Heroin respectively. Learned counsel also submits that the petitioner be afforded last opportunity and without admission he submits that such indulgence would make him to mend his ways. He further contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

6. On the contrary, Mr. Nand Lal Thakur, learned Additional Advocate General, submits that the petitioner is a habitual offender and even if this Court releases him on bail, there is every likelihood of his again repeating the offence. Ld. Additional Advocate General further contends that the investigating officer has collected sufficient prima facie evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

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ANALYSIS AND REASONING:

7. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para .

30), a Constitutional bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying 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 entitled to bail, if the Court concerned concludes that the prosecution 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 satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation.

In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para 16, held that the delicate light of the law favours release unless countered by the negative criteria necessitating that course. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not ::: Downloaded on - 05/11/2020 20:21:39 :::HCHP 5 to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

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8. Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.

9. The status report reveals that the Investigating Officer had arrested the petitioner on 27.7.2020 and he is in custody since then. Thus, the petitioner is under incarceration for more than three months. The quantity recovered is just 6.70 grams and very close to small quantity, which is defined as less than 5 grams. However, the petitioner has already undergone sufficient period of incarceration, even if he is eventually convicted.

10. The quantity of substance involved in this case does not restrict bail. The incarceration of the accused during the period of trial is neither warranted, nor justified, or going to achieve any significant purpose. Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons mentioned above, this Court believes that further incarceration of the accused during the trial is neither warranted nor will achieve any significant purpose.

11. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional bench held that ::: Downloaded on - 05/11/2020 20:21:39 :::HCHP 6 unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

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12. Given the above reasoning, 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.

13. Following the decision of this Court in Abhishek Kumar Singh v. State of HP, Cr.MP(M) No. 1017 of 2020, the petitioner the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Fifty thousand only (INR 50,000/-), and shall either furnish two sureties of a similar amount to the satisfaction of the Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered, or the aforesaid personal bond and fixed deposit(s) for a sum of Rs.

Fifty thousand only (INR 50,000/-), made in favour of Chief Judicial Magistrate, Kangra, District Kangra, H.P., 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. Such a fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made manually, then the original receipt has to be deposited. If made online, then the copy attested by any Advocate has to be filed, and the depositor shall get the online liquidation disabled. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. During the trial's pendency, it shall be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. 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). The Court shall have a lien over the deposits until discharged by substitution, and otherwise up to the expiry of the period mentioned under S. 437-A CrPC, 1973. The furnishing of the ::: Downloaded on - 05/11/2020 20:21:39 :::HCHP 7 personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to give security to the concerned Court(s) for attendance.

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Once the trial begins, the petitioner shall not, in any manner, try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.

b) The attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).

c) The petitioner shall join investigation as and when called by the Investigating Officer or any Superior Officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc. The petitioner shall cooperate with the investigation at all further stages as

d) may be required, and in the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail granted by the present order.

e) The petitioner 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 of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

f) Once the trial begins, the petitioner shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial ::: Downloaded on - 05/11/2020 20:21:39 :::HCHP 8 on each date, unless exempted.

g) In addition to standard modes of processing service of summons, the concerned Court may serve 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].

h) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.

i) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.

j) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable Warrants through SMS/ WhatsApp message/ E-Mail.

k) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

l) In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

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m) The petitioner shall immediately intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, and not later than 30 days from such modification, to the Police Station of this FIR, .

and also to the concerned Court.

n) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so.

o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner.

Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.

During the trial's pendency, if the petitioner repeats the offence or commits

p) any offence where the sentence prescribed is seven years or more, then the State may/shall move an appropriate application for cancellation of this bail.

14. The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English.

15. 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 before 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.

16. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the terms described above.

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17. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.

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18. 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.

19. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.

Copy dast.

(Anoop Chitkara), Judge.

November 5, 2020 (KS) ::: Downloaded on - 05/11/2020 20:21:39 :::HCHP