Delhi High Court - Orders
Arvind Kumar Arya S/O Shri M.C.Arya R/O ... vs Directorate Of Revenue Intelligence ... on 7 September, 2022
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
[1]
$~33 to 37
* IN THE HIGH COURT OF DELHI AT NEW DELHI\
+ CRL.M.C. 4658/2014 and CRL.M.A. 15874/2014
ARVIND KUMAR ARYA
S/O SHRI M.C.ARYA
R/O KA-45, KAVI NAGAR,
GHAZIABAD, U.P. ..... Petitioner
Through: Mr. S. K. Santoshi, Advocate.
Versus
DIRECTORATE OF REVENUE INTELLIGENCE
THROUGH RAJENDER VERMA
INTELLIGENCE OFFICER,
DELHI ZONAL UNIT,
CGO COMPLEX, NEW DELHI ..... Respondent
Through: Mr. Satish Aggarwala, Sr. SPP with
Mr. Gagan Vaswani, Advocate
+ CRL.M.C. 4671/2014 and CRL.M.A. 15915/2014
VIRENDER SINGH
S/O SH. PRAKASH SINGH
R/O P-120, OLD PILANJU VILLAGE
SAROJINI NAGAR, NEW DELHI ..... Petitioner No.1
OM PRAKASH
S/O. SH. MOHAN LAL
R/O 58/150, MORE LINE
DELHI CANTT. DELHI ..... Petitioner No.2
Through: Mr. Vivek Sood, Senior Advocate
with Mr. Muskeon Dewan and Mr.
Yogesh Saxena, Advocates.
Versus
DIRECTORATE OF REVENUE INTELLIGENCE
THROUGH RAJENDER VERMA
INTELLIGENCE OFFICER,
DELHI ZONAL UNIT,
CGO COMPLEX, NEW DELHI ..... Respondent
Through: Mr. Satish Aggarwala, Sr. SPP with
Mr. Gagan Vaswani, Advocate
Signature Not Verified
Digitally Signed
By:PRIYA
Signing Date:21.09.2022
13:26:38
[2]
+ CRL.M.C. 4689/2014 and CRL.M.A. 15952/2014
VISHNU SHANKAR UPADHYAYA
S/O SHRI RAM NARESH UPADHYAY
R/O PLOT NO.538, SECOND FLOOR,
SECTOR-5, VASUNDHARA, GHAZIABAD ..... Petitioner
Through: Mr. Sunil Satyarthi, Mr. Amitya
Saxena and Mr. Raman Gandhi,
Advocates.
Versus
DIRECTORATE OF REVENUE INTELLIGENCE
THROUGH RAJENDER VERMA
INTELLIGENCE OFFICER,
DELHI ZONAL UNIT,
CGO COMPLEX, NEW DELHI ..... Respondent
Through: Mr. Satish Aggarwala, Sr. SPP with
Mr. Gagan Vaswani, Advocate
+ CRL.M.C. 4695/2014 and CRL.M.A. 15979/2014
NILESH SHUKLA
S/O RAVINDRA NATH SHUKLA,
C-103, AMBIKA TOWER, PUMP HOUSE,
SHARE PUNJAB, ANDHERI (EAST)
MUMBAI-93 ..... Petitioner No.1
PANKAJ KUMAR SHUKLA
S/O SH. T. N. SHUKLA
R/O VILLAGE BASHARA POST SOTIPUR,
PS VARSATHI, JAUNPUR (U.P.) ..... Petitioner No.2
AKSHAY KUMAR MALIK
VILALGE GOHARPUR, POST KURBHALI,
DIST. MUZAFFARNAGAR,
UTTAR PRADESH ..... Petitioner No.3
Through: Mr. Aditya Dhawan and Ms. Kiran
Dhawan, Advocates for P-3
Versus
DIRECTORATE OF REVENUE INTELLIGENCE
Signature Not Verified
Digitally Signed
By:PRIYA
Signing Date:21.09.2022
13:26:38
[3]
THROUGH RAJENDER VERMA
INTELLIGENCE OFFICER,
DELHI ZONAL UNIT,
CGO COMPLEX, NEW DELHI ..... Respondent
Through: Mr. Satish Aggarwala, Sr. SPP with
Mr. Gagan Vaswani, Advocate
+ CRL.M.C. 4712/2014 and CRL.M.A. 16013/2014
ANIL KUMAR SETHI
S/O SH. TEK CHAND,
PRATNER, M/S ACCURATE PHARMACEUTICALS,
C-3 (A&B), GONDPUR,
INDUSTRIAL AREA, PAONTA SAHIB, HIMCHAL PRADESH
R/O 1243, SECTOR-17,
HUDA COLONY, JAGADARI,
HARYANA ..... Petitioner
Through: None
Versus
DIRECTORATE OF REVENUE INTELLIGENCE
THROUGH RAJENDER VERMA
INTELLIGENCE OFFICER,
DELHI ZONAL UNIT,
CGO COMPLEX, NEW DELHI ..... Respondent
Through: Mr. Satish Aggarwala, Sr. SPP with
Mr. Gagan Vaswani, Advocate
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 07.09.2022
1. The issue involved in all these petitions is similar, therefore, the same is being decided by a common order. For the purpose of clarity of the facts, the reference to the dates and documents is being made from CRL.M.C. 4658/2014.
2. These petitions are directed against the order dated 25.09.2014, whereby, the learned Special Judge, Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, NDPS Act, 1985) directed for surrender of Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [4] the petitioners on or before 15.10.2014. It is to be noted that after passing of the aforesaid order, this court vide order dated 13.10.2014 passed in CRL.M.C. 4658/2014 and CRL.M.A. 15874/2014, directed for stay of operation of the order dated 25.09.2014. It is, therefore, seen that the impugned order in the instant petitions has not been given effect to.
3. The facts of the case show that a raid was conducted on 22/23.10.2011 in the house of the petitioner in CRL.M.C. 4658/2014 and pursuant to the seizure of drugs in question, the petitioner was taken into custody on 25.10.2011. On 24.12.2011, the prosecution filed a complaint/chargesheet under Sections 22/23/25/29 of the NDPS Act, 1985 against the petitioner and other co-accused persons, who are petitioners in other connected matters. On 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012, the petitioners were granted conditional bail taking into consideration the fact that in Anil Kumar Menon v. Union of India1, the Hon'ble Supreme Court passed an order of stay of the arrest of the accused in that case. The facts further show that against the order of granting conditional bail to the petitioners, the respondent approached this court under Section 482 of the Cr.P.C. seeking cancellation of the bail on various grounds.
4. This court in Crl.M.C. 1153/2012 and other connected matters vide order dated 19.12.2013, considered the submissions made by the parties and did not find it appropriate to withdraw the benefit granted by the Special Judge vide order dated 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012, however, it was clarified that the observations made in the orders would not prejudice the case of the prosecution during the pendency of the trial. It appears that the respondent, thereafter, filed an application directing Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [5] surrender of the petitioners, in view of the dismissal of SLP (Crl.) 2026/2011 by the Hon'ble Supreme Court on 07.05.2014. By the impugned order, the application filed by the respondent has been accepted and the Special Judge directed the petitioners to surrender.
5. The learned counsel appearing on behalf of the petitioners submit that the impugned orders passed by the trial court are against the spirit of the order passed by this court while dismissing the petition filed by the respondent/Department on 19.12.2013. According to them, the petitioners were granted the benefit of regular bail vide orders dated 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012, and till date, there is not a single instance which would indicate that the petitioners, at any point of time, have violated any of the terms imposed by this court. They also submitted that during the trial, the petitioners have fully cooperated and as of now out of 96 prosecution witnesses only 05 prosecution witnesses have been examined and the trial court would take long time for its conclusion. They further undertake that they are ready to abide by all terms and conditions as may be imposed by this court, however, they submit that after more than 10 years if the order passed by the trial court is to be complied with, the same would cause grave prejudice to them. The learned counsel appearing on behalf of the petitioners while placing reliance on the decision of the Hon'ble Supreme Court in the case of Ramesh Kumar Samra v. Directorate of Revenue Intelligence2, submit that under the similar circumstance, the Hon'ble Supreme Court while taking into consideration the fact that the order of granting bail was passed on 19.12.2006 in that case, did not find it appropriate to cancel the same on 10.12.2009 on the ground that about three 1 SLP (Crl.) No. 2026/2011 2 Crl. A. 1077/2007 dated 10.12.2009 Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [6] years had already passed by that time when the Hon'ble Supreme Court was considering the application for cancellation of bail. They, further submit that to direct the petitioners to surrender, at this stage, would not serve any useful purpose as nothing more is required to be done. All seizures, materials, evidence etc., are already in possession of the prosecution and at this stage, no custodial interrogation is required.
6. Learned counsel appearing on behalf of the respondent submits that the trial court has not directed for cancellation of bail but has directed for compliance of its own order of granting conditional bail. According to him, the orders dated 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012, clearly record that the benefit of grant of bail would only be effective till the date of passing of the final order by the Hon'ble Supreme Court in pending SLP (Crl.) 2026/2011. According to him, once the Hon'ble Supreme court dismissed criminal SLP, the petitioners are under an obligation to surrender. It is also stated that the petitioners did not challenge the condition of surrender, in case of dismissal of SLP, as imposed in orders dated 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012. The reliance is placed on the decision in the case of Directorate of Revenue Intelligence v. Anil Kumar and Ors.3. Further reliance is placed on the judgment dated 24.03.2015 in CRL.M.C. No.5222/2013, also affirmed by the Hon'ble Supreme Court. He further submits that the issue involved in the instant cases with respect to the applicability of the provisions of the NDPS Act stands settled by the Hon'ble Supreme Court in the case of Union of India & Anr. Vs. Sanjeev v. Deshpande4. The respondents, therefore, submitted that the petitioners at this stage, cannot take advantage of the lapse of time 3 Crl. M.C. No.4641/2013 dated 23.09.2014 4 2014 13 SCC 1 Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [7] and they are required to surrender as per the original condition of the grant of bail to them vide orders dated 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012.
7. I have heard the submissions made by the learned counsel appearing on behalf of the parties and perused the record.
8. This court is conscious of the fact that the present is not a case of cancellation of bail but is a case where a condition was imposed by the Special Court while granting bail and at a later stage, the Special Court is directing for fulfilment/compliance of the said condition.
9. So far as the legal position with respect to cancellation of bail is concerned, the same has already been settled by various pronouncements of the Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Bhagirath Singh v. State of Gujarat5 has held that very cogent and overwhelming circumstances are necessary for the order seeking cancellation of bail. The Hon'ble Supreme Court in the matter of Dolat Ram and Ors. v. State of Haryana6 has laid down certain factors which need to be considered while cancelling the bail.
10. During the pendency of the prosecution there is no allegation against any of the petitioners regarding violations of any of the conditions imposed by the trial court. The Hon'ble Supreme Court in the case of Ramesh Kumar Samra (supra) while considering the prayer of the Department to cancel the bail for an offence under the NDPS Act, did not find it appropriate to accept the prayer on the ground that there was no allegation that the accused in that case indulged in any manner whatsoever in tampering or destroying the evidence of the case. There was no allegation 5 1984 1 SCC 284 6 1995 1 SCC 349 Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [8] that after they were released on bail, they indulged in any similar offence under the NDPS Act. In the instant case also, there is no allegation that there has been any subsequent case against any of the petitioners with respect to a similar offence. It is also not the case of the prosecution that at this stage, the custodial interrogation of the petitioners is required. What is argued against the petitioners is that they availed the benefit of the order granting bail to them under certain conditions.
11. At this stage, when the petitioners have not challenged the condition of surrender, whether this court in the exercise of its power under Section 482 of the Cr.P.C. can modify the condition of surrender, as imposed by the Special court on 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012, is an issue to be considered.
12. In the instant case, the condition of surrender in case of dismissal of pending SLP before the Hon'ble Supreme Court was imposed by the Special Judge in exercise of its power under Section 439 of Cr.P.C. The SLP which was referred to and dismissal thereof was directed to result in surrender of the petitioners, does not have any relevance on facts. The matter pending before the Hon'ble Supreme Court had arisen from the orders passed by the Hon'ble High Court of Bombay. A perusal of Section 439(1)(a) would show that a high court or court of sessions may direct that any person accused of any offence and in custody be released on bail, and if the offence is of nature specified in sub Section 3 of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub Section. Section 437(3) reads as under:
"(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [9] or attempt to commit, any such offence, is released on bail under sub-
section (1), the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice."
A perusal of the provisions under Section 439 or 437 (3) would show that the conditions to be imposed on release of the accused on bail are to ensure that the accused is available for the trial and the trial should not get adversely affected on account of any direct or indirect inducement, threat or promise by the accused with the facts of the case or to the person acquainted with the case. This is with an object to ensure that there is no tampering with the evidence of the case. This also ensures that the accused are not involved in any similar offence to the offence of which he is accused or suspected.
13. The Hon'ble Supreme Court in the case of Munish Bhasin and Ors. v. State7 had an occasion to consider condition imposed by the High Court requiring the accused to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to the accused and his parents. The Hon'ble Supreme Court in that case has held while exercise discretion to release an accused under Section 438 of the code neither the high Court nor the Supreme Court would be justified in imposing freakish conditions. It has been held that to subject an accused to any other condition would be beyond jurisdiction of the power conferred on the court under Section 438 of the code except the one which are mentioned in Section 437(3) of the code. It has also been held that the court should be extremely chary in imposing 7 2009 4 SCC 45 Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [10] condition and should not transgress its jurisdiction or power by imposing conditions which are not called for at all. While holding so the Hon'ble Supreme court set aside the condition imposed by the high court in that case. In another case, Sumit Mehra v. State of N.C.T of Delhi 8, the Hon'ble Supreme Court was considering justification of an order granting anticipatory bail with respect to an offence punishable under Section 420, 467,468 and 471 of the IPC, whereby, the high court directed the accused to deposit a sum of Rs.1 crore in fixed deposit in the name of complainant in any nationalised bank and to keep FDR with the investigating officer. In paragraph 15 of the said decision, it has been held that the words of "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstances and effective in the pragmatic sense and should not defeat the order of grant of bail. The condition of directing to deposit an amount was set aside. The honourable Supreme Court in another matter Kunal Kumar Tiwari v. State of Bihar 9 has held that Clause(c) of Section 437 (3) of the Cr.P.C. allows courts to impose such conditions in the interest of justice, but such conditions cannot be arbitrary, fanciful or extent beyond the ends of provisions. The phrase "interest of justice" as used under the Clause (c) of Section 437 (3) means good administration of justice or advancing the real process and inclusion of broader mean should be shunned because of purposive interpretation. A similar view has been taken by the Hon'ble Supreme Court in the case of 8 2013 15 SCC 570 9 2018 16 SCC 74 Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [11] Parvez Noordin Lokhandwalla v. State of Maharashtra and Anr. 10 where it has been held that the conditions which are imposed by the court must bear proportional relationship to the purpose of imposing the conditions. The Hon'ble Supreme Court recently had an occasion to consider condition imposed by the high court while granting bail under Section 439 of the Cr.P.C. directing the accused to visit the house of the complainant in that case with rakhi thread and with a box of sweet requesting the complainant to tie the rakhi bend with the promise to protect her to the best of his ability for all times to come. In that case, the accused was facing a trial for offence punishable under Section 452/354(a)/354/323 and 506 of the IPC. The Hon'ble Supreme Court in that case of Aparna bhat and Ors v. State of Madhya Pradesh and Anr11 set aside the said condition and issued various directions.
14. In view of the aforesaid legal position, this court finds that the conditions imposed by the special judge in the instant case are beyond its scope. The trial court, while granting bail can consider, depending upon various factors, whether at the time of consideration, the court finds the accused to be entitled for grant of bail or not. There cannot be an order of granting bail under Section 439 depending upon the outcome of any other pending matter which does not have any relation with the facts of the case where bail is prayed for. If any other pending case has some legal relevance, the trial court is expected to analyse the consequences thereof and either to reject the bail or to grant it. The conditions should not go beyond the provisions of law. The condition of surrender on account of dismissal of any other case is an onerous one. If the pending case had relevance on the date 10 2020 10 SCC 77 11 2021 SCC OnLine SC 230 Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [12] of passing of the order, the trial court was well within its jurisdiction to reject the bail.
15. Besides the aforesaid reasoning, it is seen that the orders granting bail to the petitioners were passed on 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012, and there is no allegation of any misuse, this court finds it appropriate to set aside the said condition of surrender in the exercise of power under Section 482 of the Cr.P.C. Accordingly, the petitioners shall continue to remain on bail, as per the orders dated 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012, passed by the trial court. All other conditions will remain in operation except the condition which has been set aside by this court regarding the surrender of the petitioners on or before 15.10.2014. This court under the facts of the present cases, in addition to the conditions imposed, vide order dated 24.03.2012, 24.04.2012, 07.05.2012 and 19.05.2012 by the trial court, also finds it appropriate to impose the following additional conditions:
(i) The petitioners shall furnish their current addresses before the Special Judge within 15 days and they shall continue to reside at the said addresses unless specific permission is granted by the court concerned, in this regard.
(ii) They shall appear before the trial court on each and every date unless the court exempts their personal appearance.
(iii) They shall not indulge in any case of similar nature.
16. The respondent, however, would be at liberty to file an appropriate application for modification of the order in case they find any supervening circumstances warranting cancellation of bail.
17. With the aforesaid directions, the petitions along with pending Signature Not Verified Digitally Signed By:PRIYA Signing Date:21.09.2022 13:26:38 [13] applications are disposed of.
PURUSHAINDRA KUMAR KAURAV, J
SEPTEMBER 7, 2022
Priya Click here to check corrigendum, if any
Signature Not Verified
Digitally Signed
By:PRIYA
Signing Date:21.09.2022
13:26:38