Himachal Pradesh High Court
Sumandeep Kaur vs The State Of H.P on 2 May, 2024
REPORTABLE IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP (M) No.893 of 2024 Decided on: 02.05.2024 __________________________________________________________ .
Sumandeep Kaur .....Petitioner Versus The State of H.P. ......Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes For the petitioner: Mr. Pawan Gautam, Advocate. For the respondent: Mr. Prashant Sen, Deputy Advocate General.
ASI Bhagat Ram, Police Station [Sadar], Solan, District Solan [H.P.], present in person with records.
Ranjan Sharma, Judge [Oral] Bail petitioner [Sumandeep Kaur], has come up before this Court, seeking pre-arrest bail, under Section 438 of the Code of Criminal Procedure [hereinafter referred to as 'Cr.P.C.'], originating from FIR No.207 of 2023, dated 25.09.2023, under Sections 21 and 29 of Narcotics Drugs and Psychotropic Substances Act, 1985 [hereinafter referred to 'NDPS 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 24/05/2024 20:31:36 :::CIS -2-Act'], registered at Police Station [Sadar], Solan, District Solan [H.P.].
FACTUAL MATRIX:
.
2. The case set up by Mr. Pawan Gautam, learned counsel for the petitioner, is that the bail petitioner has been falsely implicated by the police in FIR No.207 of 2023, as referred to above. The case of the bail petitioner is that the police registered a case against one Daksh Thakur from whom Heroin/Chitta weighing 11.58 grams was recovered, for which she was arrested on 26.09.2023. It is further stated that on the statement of Daksh Thakur, the police intends to implicate the bail petitioner in the said case. It is averred in the bail petition that the bail petitioner is innocent and she is not aware, as to how, the main accused, namely, Daksh Thakur, has remitted the payments, through Google Pay, in her account. It is further stated in the bail petition that the bail petitioner ::: Downloaded on - 24/05/2024 20:31:36 :::CIS -3- belongs to a respectable family. In the backdrop of the above facts, the instant bail petition has been filed, seeking pre-arrest bail.
.
PROCEEDINGS BEFORE THE COURT:
3. The matter was listed on 30.04.2024 when, on the request of learned counsel for the bail petitioner, the same was adjourned for 01.05.2024, when, the undated Status Report [filed on 01.05.2024] was filed before this Court. Copy of the Status Report was also furnished to the learned counsel for the petitioner so as to enable him to make submissions in the matter.
3(i). As per the Status Report, since the bail petitioner was absconding and evading inquiry and arrest, therefore the proclamation proceedings under Section 82 Cr.P.C. was initiated on 31.10.2023 and even proclamation was published in terms of the orders dated 05.04.2024 passed by the Learned Sessions Judge, Solan, was published on 08.04.2024 and in these circumstances, this Court directed the ::: Downloaded on - 24/05/2024 20:31:36 :::CIS -4- bail petitioner to remain present in the Court under Section 438 (1B) Cr.P.C., but in vain.
STAND OF STATE AUTHORITIES:
.
4. A perusal of the Status Report dated 01.05.2024 [filed in Court] and the confirmatory copy of Status Report dated 02.05.2024 points out that one Mangal Singh, resident of Village Ramgarh, near to Attari, Indo-Pak Border in District Amritsar, [Punjab] had sold contraband [Chitta/Heroin, weighing 11.58 grams ] to one Daksh Thakur, who resided in Tatuhal Village near Oachghat in District Solan [H.P.].
4(i). It has come in the Status Report, that the aforesaid Daksh Thakur by using his Cell Phone No.78763-02088 has transferred/remitted an amount of Rs.21,000/- [Rupees Twenty One Thousand] on 22.09.2022 through Google Pay, in the Bank Account No.84130100444529, linked to Gramin Bank Attari Amritsar, Punjab, on the Cell Phone No.70173-27032 of the bail petitioner, Sumandeep Kaur, in lieu of having ::: Downloaded on - 24/05/2024 20:31:36 :::CIS -5- purchased the Chitta/Heroin, from one Mangal Singh, who is the brother-in-law of the bail petitioner. Status report further reveals that the accused-Daksh Thakur .
had transferred this amount at the instance of another accused Mangal Singh, in the bank account of bail petitioner. Status report reveals that in addition to this, monetary transaction showing entries of Rs.3,40,000/-
[Rupees Three Lakh Forty Thousand] during the past one year were made in the bank account of the bail petitioner with different persons.
4(ii). Status Report further reveals that the State Authorities-Police have visited Village Rangarh and other places, namely, Attari, Gharinda, Sarvada [District Amritsar] on 27.09.2023, 05.10.2023, 06.10.2023, 07.10.2023, 08.10.2023, 21.10.2023 to 24.10.2024, but her whereabouts were not traced.
Status Report further reveals that the Learned Sessions Judge, Solan, has instituted proceedings on 31.10.2023, under Section 82 Cr.P.C. for declaring the bail petitioner ::: Downloaded on - 24/05/2024 20:31:36 :::CIS -6- as Proclaimed Offender and even the arrest warrants remained unexecuted thrice, as the bail petitioner was evading service absconding/concealing herself.
.
Accordingly, in terms of orders passed by the Learned Sessions Judge, Solan, dated 05.04.2024, the proclamation notice was also published/affixed at the designated place on 08.04.2024 against the bail petitioner and even thereafter till day, the bail petitioner is absconding and concealing herself, which is an attempt to scuttle the investigation against her and the trial also. Status Report reveals that the police has filed the challan qua the accused on 30.11.2023 but the required action against the bail petitioner is awaited due to her non participation in the investigation.
5. Heard Mr. Pawan Gautam, Learned Counsel for the bail petitioner and Mr. Prashant Sen, Learned Deputy Advocate General, for the respondent-State.
6. Before dealing with the present application, it is necessary to take note of the provisions of Section ::: Downloaded on - 24/05/2024 20:31:36 :::CIS -7- 82 of the Code of Criminal Procedure and Sections 21 and 29 of the NDPS Act, which read as under
" Section 82 of the Code of Criminal Procedure .
"82. Proclamation for person absconding._ (1) If Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows--
(i) a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village;
c) a copy thereof shall be affixed to some conspicuous part of the Court house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the ::: Downloaded on - 24/05/2024 20:31:36 :::CIS -8- place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation .
was duly published on a specified day, in the manner specified in clause (i) of Sub-Section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
(4) Where a proclamation published under Sub-
Section (1) is in respect of a person accused of an offence punishable under section 302, r 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860) and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of Sub-Sections (2) and (3) shall apply to a declaration made by the Court under Sub-Section (4) as they apply to the proclamation published under Sub-Section (1)."
Section 21 of the NDPS Act Punishment for contravention in relation to manufactured drugs and preparations-
::: Downloaded on - 24/05/2024 20:31:36 :::CIS -9-Whosoever, in contravention of any provision of this Act or any rule or order made or condition of license granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation .
containing any manufactured drug shall be punishable-
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to r one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees."
Section 29 of the NDPS Act Punishment for abetment and criminal conspiracy (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a .
party to the criminal conspiracy to the commission of any act in a place without and beyond India which--
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within In
7. Notably, the offence under NDPS Act are cognizable and, therefore, the claim of the suspect-
accused for pre-arrest or post-arrest bail-regular bail is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad para-meters mandated by the Hon'ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598;
Kalyan Chandra Sarkar versus Rajesh Ranjan, ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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(2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496; reiterated in P. Chidambaram versus Directorate of Enforcement, .
(2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima-facie or reasonable grounds exists which lead to believe or point out towards accusation; and these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-
NCT Delhi, (2020) 5 SCC 01.
7(i). While dealing with the case for grant of bail, the three judges bench of Hon'ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para-25 that the nature of the crime has a huge relevancy, while considering claim for bail.
7(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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of the broad parameters, which are to be primarily taken into account after reflecting judicial application of mind while considering the claim for bail as under:-
.
"11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting r bail should reflect the judicial application of mind taking into consideration the well- known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/witnesses;
(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if left out ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case .
and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of r the CrPC, as the case may be."
8. Based on the above mandate of law, the general principle of law, is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail [pre-arrest bail or regular bail], the formation of prima-facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed .
restrains or the broad parameters mandated by law, as referred to herein above.
9. This Court is conscious of the fact that as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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tampered with, the large interests of the public/state.
In this background, while testing the claim for bail, the Court is required to form a prima-facie .
opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.
9(i). While dealing with the object of the NDPS
Act, the Hon'ble
r Supreme Court in case of Durand
Didier, (1990) 1 SCC 95, has mandated that devastating menace of clandestine smuggling and illegal trafficking in drugs and substances has led to drug addiction amongst a sizeable section of the society, the adolescents and the youth, having a deleterious effect and deadly impact on the society, with the following observations :
19. In view of the above position, it cannot be contended that the prohibited drugs and substances seized from the appellant's possession were in small quantity so as to bring him only within the mischief of Section 27(a) of the Act.
20. It may not be out of place to mention that even if a person is shown to have been in possession of a small quantity of a narcotic drug or psychotropic substance, the burden of ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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proving that it was intended for the personal consumption of such person and not for sale or distribution, lies on such person as per Explanation 2 of Section 27 of the Act.
21. Thirdly, the very fact that the appellant had kept these drugs and substances in many .
ingeniously devised places of concealment in the camera, shaving tube, torch and shoes would indicate that the appellant was having Fuji knowledge that the drugs he carried were prohibited drugs and that he was having them in violation of law.
22. We, for the above reasons, see no merit in this contention also. The Trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Gao as follows:
"The spreading of the drugs in Gao is r becoming day by day a terrible menace which is completely destroying the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming provisions calling for severe punishment in case of illegal possession and transportation of drugs meant for personal consumption and eventual trade."
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and pyschotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory .
minimum imprisonment and fine....".
9(ii). In Hira Singh versus Union of India, (2020) 20 SCC 272, the Hon'ble Supreme Court has mandated that the provisions of the NDPS are not to be construed liberally but to ensure effective implementation of rule of curbing and r to law so as to achieve the object of enactment {NDPS} by stringently deal with nefarious activities/ illegal trafficking in powerful, dangerous and injurious illegal street drugs under the NDPS Act, as under:
10.3 At this stage, it is required to be noted that illicit drugs are seldom sold in a pure form. They are almost always adulterated or cut with other substance. Caffeine is mixed with heroin, it causes that heroin to vaporize at a lower rate. That could allow users to take the drug faster and get a big punch sooner. Aspirin, crushed tablets, they could have enough powder to amend reversal 34 doses of drugs. Take example of heroin. It is known as powerful and illegal street drug and opiate derived from morphine. This drug can easily be "cut" with a variety of different substances.
This means that drug dealer will add other drugs or non-intoxicating substances to the drug so that they can sell more of it at a lesser expense to themselves.
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Brown-sugar / smack is usually made available in power form. The substances is only about 20% heroin. The heroin is mixed with other substances like chalk powder, zinc oxide, because of these, impurities in the drug, brown-sugar is .
cheaper but more dangerous. These are only few examples to show and demonstrate that even mixture of narcotic drugs or psychotropic substance is more dangerous.
Therefore, what is harmful or injurious is the entire mixture/tablets with neutral substance and Narcotic Drugs or Psychotropic Substances. Therefore, if it is accepted that it is only the actual content by weight of offending drug which is relevant for the purpose of determining whether it would constitute small quantity or commercial quantity, in that case, the object and purpose of enactment of NDPS Act would be frustrated. There may be few punishment for "commercial quantity". Certainly that would not have been the intention of the legislature...."
10.5 The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands.
Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice. Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace .
otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act ; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act ...."
ANALYSIS OF CLAIM IN INSTANT CASE:
10. After taking into account the entirety of the facts and circumstances, as referred to above and the mandate of law, this Court is of the considered view that the bail petitioner is not entitled to the concession of enlargement on bail, at this stage, for the following ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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reasons:-
10(i). The prima-facie accusation exists against the bail petitioner, for the reason, that at instance of her .
brother-in-law, namely, Mangal Singh, resident of Attari [Punjab], the accused Daksh Thakur has transferred the amount in lieu of frequent sale-purchase of Heroin/ Chitta on 4-5 occasions weighing 37 grams in the past. The Status Report further indicates that the accused Daksh Thakur by using his Cell Phone No. 78763-02088 has transferred/remitted an amount of Rs.21,000/- [Rupees Twenty One Thousand] on 22.09.2022 through Google Pay, to the Bank Account No.84130100444529 linked to Gramin Bank Attari [Amritsar, Punjab], on the Cell Phone No.70173-27032 of the bail petitioner, Sumandeep Kaur, in lieu of having purchased the Chitta/Heroin from one Mangal Singh, who is the brother-in-law of the bail petitioner. Status report further reveals that this amount was transferred by the accused-Daksh Thakur at the instance of another ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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accused Mangal Singh, in the bank account of bail petitioner. Status report further indicates that there were entries of monetary transaction of Rs.3,40,000/- [Rupees .
Three Lakh Forty Thousand] during past one year in the account of bail petitioner with different persons including Daksh Thakur, accused.
The above sequence of events points out towards the prima-facie accusation that the main accused Mangal Singh, Daksh Thakur and even the bail petitioner-Sumandeep Kaur, who had indulged themselves in a well-coordinated/designed effort for the Sale, Purchase and Inter-State-Import of Heroin/Chhita, from Punjab to Himachal. Such coordinated and planned effort by indulging in illegal and nefarious activities by resorting to the Inter-State-
Import of prohibited contraband, is destroying and ruining the society at large. Such activities are to be dealt with iron hands. Merely because, the quantity is small or intermediate will not confer a licence nor ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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give leverage to the persons for being enlarged on bail automatically. Thus, in larger societal interests, this Court is not inclined to extend the benefit of bail to the .
bail petitioner, who has indulged herself in a well designed and well-coordinated effort towards the Sale, Purchase and Inter-State-Import of prohibited contraband is corroborated from the monetary transaction(s) interse the bail petitioner and the accused and further when, the prima-facie accusation is made out against the bail petitioner.
10(ii) While deciding the claim for bail, in case of a person, who was indulged in Sale, Purchase and Inter-
State Import of nefarious drugs, this Court in Cr.MP(M) No. 273 of 2024, Davinder @ Chhinda versus State of Himachal Pradesh, while denying bail has held as under:
11(i). To attain the objective of the NDPS Act and to ensure the rule of law, such persons who are prima facie involved in nefarious drug abuse, such person have no vested right to be enlarged on bail under the pretext of alleged claim of violation of their liberty in Article 21 for the reason, that the alleged ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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assertion of infringement of personal liberty has to succumb to the larger interest of the society, which obviously is at a much higher pedestrian. The plea of seeking bail, claiming violation of personal liberty is a farce when, the liberty of a person ends .
where liberty of another including the society at large is in sought to be or actually violated, as in this case.
11(ii). Notably, the personal liberty under Article 21 to some extent may carry weight depending on facts of each case but when it comes to safeguarding and protecting the rights and interests of the society, the community and the nation then, in that event, individual right shall have to succumb to societal interests, in terms of the mandate of law, in Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another (2012) 9 SCC 446, r as under:
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual.
Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one.
.
The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the .
tranquility and safety which every well-meaning person desires.
Not for nothing J. Oerter stated:
"Personal liberty is the right to act without interference within the limits of the law."
19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is r jeopardized, for the rational collective does not countenance an anti-social or anti collective act.
30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and .
desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."
10(iii).
Likewise in Cr.MP(M) No. 322 of 2024, Sonu versus State of Himachal Pradesh has held as under:
10. Even a suspect or an accused under NDPS Act does not have any vested right or an automatic claim for pre-arrest bail or regular bail, merely on the ground that the quantity of contraband, allegedly involved, is either small or intermediate. However, while considering the prayer for bail, even in offences under the NDPS, relating to either small quantity or an intermediate quantity, still the claim is required to be tested in the backdrop of Section(s) 438 or 439 of Code of Criminal Procedure {herein, Cr P C}, and also in the context of the time tested broad parameters mandated by the Hon'ble Supreme Court, in Paras 6 to 8 referred to above.::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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11. Merely because a bail petitioner is implicated for accusation relating to either small or intermediate quantity of contraband cannot ipso facto confer a right of bail, on such a suspect or accused. The Courts cannot feign .
ignorance that it is the modus operandi of Drug Mafia's or Master-minds or King Pins of such trade, who primarily act through persons who are either indigent or poor or are unemployed or have unwarranted and unexpected financial expectations or who are suffers of financial liability etc., by initially alluring them to act as small peddlers towards trafficking of small and intermediate quantity of contraband, with the predesigned r calculation that they may have an easy escape, even if they are apprehended in view of the quantity being small or intermediate. Day in and day out, the instances are endlessly flowing where, these peddlers have turned out to be habitual offenders, being involved in numerous cases under NDPS and under other Statutes, which of course, becomes an important ingredient while examining claim for bail.
12. It is high time that the drug trafficking and menace needs to be dealt with iron hands. If the available material, points towards the prima facie case or carves out reasonable grounds to believe towards the accusation or culpability or involvement then, in the larger interest of the society the ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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rule of law needs to be strictly enforced and any drug peddler or trafficker or person cannot be permitted to be enlarged on bail, ipso facto, merely because the quantity of contraband involved is either small or intermediate.
.
Enlarging such persons on bail, shall certainly amount to sacrificing the state and of course the nation to such nefarious activists.
10(iv). Besides the above, this Court also takes note of the conduct of the bail petitioner whereby after the registration of F.I.R. No. 207 of 2023 dated 25.09.2023, even the Learned Trial Court, Solan, has instituted the proclamation proceedings under Section 82 Cr.P.C.
against the bail petitioner. Even the status report reveals that on three occasions, warrant of arrest was issued and police had made every effort by visiting the permanent place of residence of the bail petitioner at Village Rangarh [Attari] District Amritsar [Punjab], but the bail petitioner is absconding/concealing herself and has evaded arrest since 27.09.2023 till April, 2024 and even thereafter till day. The status report further reveals that in compliance to the orders dated 05.04.2024 passed by Learned ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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Sessions Judge, the proclamation notice under Section 82 Cr.P.C was issued and such notice has also been published/affixed at designated place in accordance with .
norms.
10(v). Once the bail petitioner is absconding or concealing arrest since 27.09.2023 till April, 2024 and thereafter till day despite several attempts by the Investigating Agencies and despite the issuance of the proclamation under Section 82 of the Cr.P.C., therefore the conduct of bail petitioner refrains this Court from extending the concession of bail to the petitioner.
10(vi). In Srikant Upadhyay and others versus State of Bihar, 2024 SCC OnLine SC 282, the Hon'ble Supreme Court, while upholding the order of the High Court has held that a person who disobeys the order of a public servant or who does not appear in response to a proclamation under Section 82 Cr.P.C is not only liable for accusation for offences under Section 174 and 174A of the Indian Penal Code but such an absconder cannot ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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be permitted to avail the concession of anticipatory bail, in view of the following observations:
17. For a proper consideration of the aforesaid contentions and allied questions, it is only .
appropriate to refer to certain provisions of law as also certain relevant decisions. From the chronology of events narrated hereinbefore, it is evident that for reasons best known to the appellants, subsequent to the filing of the final report in terms of the provisions under Section 173 (2), Cr.P.C in FIR No.79/2020 and issuance of summons, issuance of bailable warrants and issuance of non-bailable warrants; pursuant to the failure of the appellants to appear before the Court on the date fixed for their appearance based on bailable warrants, they did not care to take any action in accordance with law except r moving applications for bail. Same was the position even after the issuance of the proclamation under Section 82, Cr.PC. As noted earlier, in the case of similarly situated co-accused of the appellants, they appeared and obtained regular bail pursuant to the issuance of bailable warrants.
Thus, a scanning of the acts and omissions of the appellants, it can only be seen that virtually, the appellants were defying the authority of law and moving applications for bail when they apprehended arrest owing to their nonattendance and dis-obedience. It is in the context of the aforesaid facts revealed from the materials on record that the contention of the appellants that they were only pursuing their right to file application for anticipatory bail and, therefore, they were not either evading the arrest or absconding, has to be appreciated.
20. Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel & Ors. v. State of Gujarat5, the High Court of Gujarat observed thus: -
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"9. Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners- accused in a competent Court, so far as .
proceeding initiated under Section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely." (underline supplied)
21. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their .
application was interfered with by a higher Court.
That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail-cum-surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. PC an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law.
24. There can be no room for raising a contention that when an application is filed for anticipatory bail, it cannot be adjourned without passing an order of interim protection. A bare perusal of Section 438 (1), Cr.PC, would reveal that taking into consideration the factors enumerated thereunder the Court may either reject the application forthwith or issue an interim order for the grant of anticipatory bail. The proviso thereunder would reveal that if the High Court or, the Court of Sessions, as the case may be, did not pass an interim order under this Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest the person concerned without warrant, on the basis of the accusation apprehended in such application. In view of the proviso under Section 438(1), Cr.PC, it cannot be contended that if, at the stage of taking up the matter for ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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consideration, the Court is not rejecting the application, it is bound to pass an interim order for the grant of anticipatory bail. In short, nothing prevents the court from adjourning such an application without passing an interim order. This question was considered in detail by a Single Bench .
of the High Court of Bombay, in the decision in Shrenik Jayantilal Jain and Anr. v. State of Maharashtra Through EOW Unit II, Mumbai6 and answered as above and we are in agreement with the view that in such cases, there will be no statutory inhibition for arrest. Hence, the appellants cannot be heard to contend that the application for anticipatory bail filed in November, 2022 could not have been adjourned without passing interim order. At any rate, the said application was rejected on 04.04.2023. Pending the application for anticipatory bail, in the absence of an interim protection, if a police officer can arrest the accused concerned how can it be contented that the court which issued summons on account of nonobedience to comply with its order for appearance and then issuing warrant of arrest cannot proceed further in terms of the provisions under Section 82, Cr.PC, merely because of the pendency of an application for anticipatory bail. If the said position is accepted the same would be adopted as a ruse to escape from the impact and consequences of issuance of warrant for arrest and also from the issuance of proclamation under Section 82, Cr.PC, by filing successive applications for anticipatory bail. In such circumstances, and in the absence of any statutory prohibition and further, taking note of the position of law which enables a police officer to arrest the applicant for anticipatory bail if pending an application for anticipatory bail the matter is adjourned but no interim order was passed. We have no hesitation to answer the question posed for consideration in the negative. In other words, it is made clear that in the absence of any interim order, pendency of an application for anticipatory bail shall not bar the Trial Court in issuing/proceeding with ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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steps for proclamation and in taking steps under Section 83, Cr.PC, in accordance with law.
25. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said .
to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant.
26. The factual narration made hereinbefore would reveal the consistent disobedience of the appellants to comply with the orders of the trial Court. They failed to appear before the Trial Court after the receipt of the summons, and then after the issuance of bailable warrants even when their co-accused, after the issuance of bailable warrants, applied and obtained regular bail. Though the appellants filed an application, which they themselves described as ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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"bail-cum-surrender application" on 23.08.2022, they got it withdrawn on the fear of being arrested. Even after the issuance of nonbailable warrants on 03.11.2022 they did not care to appear before the Trial Court and did not apply for regular bail after its recalling. It is a fact that even after .
coming to know about the proclamation under Section 82 Cr.PC., they did not take any steps to challenge the same or to enter appearance before the Trial Court to avert the consequences. Such conduct of the appellants in the light of the aforesaid circumstances, leaves us with no hesitation to hold that they are not entitled to seek the benefit of pre-arrest bail."
10(vii). The Apex Court, in State of Haryana Versus Dharamraj, 2023 SCC OnLine SC 1085, while denying bail to an accused-suspect, who was absconding or was concealing his arrest and was declared a proclaimed offender under Section 82 Cr.P.C. as under:-
"16. What the High Court (also) lost sight of was that the respondent was a declared proclaimed offender. The High Court notes, at Paragraph 28, that it was not dealing with the prayer seeking quashing of the proclamation proceedings as the same were not made part of the petition before it. As things were, the respondent was declared a proclaimed offender on 05.02.2021, and sought anticipatory bail from the High Court only in October, 2021. As such, it was not correct for the High Court to brush aside such factum, on the basis of averments alone, purporting to explain the backdrop of such declaration by mere advertence to a similar-sounding name, in the petition before it, as recorded at Paragraphs 9 and 10 of the Impugned Order. The declaration of the respondent as a proclaimed offender, and such ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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declaration subsisting on the date of the Impugned Order, we are unable to agree with the High Court that the respondent was entitled to 'reform and course correct'.
17. The respondent, without first successfully assailing the order declaring him as a .
proclaimed offender, could not have proceeded to seek anticipatory bail. Looking to the factual prism, we are clear that the respondent's application under Section 438, CrPC should not have been entertained, as he was a proclaimed offender. We may note that in Lavesh v State (NCT of Delhi), (2012) 8 SCC 730, this Court was categoric against grant of anticipatory bail to a proclaimed offender. In the same vein, following Lavesh (supra) is the decision in State of Madhya Pradesh v Pradeep Sharma, (2014) 2 SCC 171, where r this Court emphasised that a proclaimed offender would not be entitled to anticipatory bail. Of course, in an exceptional and rare case, this Court or the High Courts can consider a plea seeking anticipatory bail, despite the applicant being a proclaimed offender, given that the Supreme Court and High Courts are Constitutional Courts. However, no exceptional situation arises in the case at hand. Following Pradeep Sharma (supra), in Prem Shankar Prasad v State of Bihar, 2021 SCC OnLine SC 955, this Court was unequivocal that the High Court therein erred in granting anticipatory bail ignoring proceedings under Sections 82 and 83, Cr.P.C. In Abhishek v State of Maharashtra, (2022) 8 SCC 282, this Court concluded:
'68. As regards the implication of proclamation having been issued against the appellant, we have no hesitation in ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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making it clear that any person, who is declared as an "absconder" and remains out of reach of the investigating agency and thereby stands directly at conflict with law, ordinarily, deserves no concession or .
indulgence. By way of reference, we may observe that in relation to the indulgence of pre-arrest bail in terms of Section 438 CrPC, this Court has repeatedly said that when an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 CrPC. [For example, Prem Shankar Prasad v. State of Bihar, (2022) 14 SCC 529: 2021 SCC OnLine SC 955] ...'
18. Accordingly, in view of the discussions made hereinabove, the Impugned Order granting r anticipatory bail to the respondent is set aside. The respondent shall surrender before the Court concerned within four weeks from today and may seek regular bail which will be considered on its own merits without being prejudiced by the present judgment."
10(viii). Besides the above, the act and conduct of the bail petitioner, in not participating or appearing before the Investigating Agencies, since 27.09.2023 till April, 2024 amounts to a blatant and well designed attempt to scuttling the investigation, with the intention to give undue advantage to the main accused [Daksh Thakur] and Mangal Singh, who is the brother-in-law of the bail ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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petitioner. Accordingly, any attempt to scuttle the fair and speedier investigation and the resultant trial, is by itself sufficient enough to deny the concession of bail to .
the bail petitioner.
10(ix). The Status Report reveals that the bail petitioner is evading arrest and is absconding and concealing herself from the police since 27.09.2023 till day [02.05.2024] then, there is every likelihood of the bail petitioner fleeing away and even thwarting the administration of justice.
10(x). The conduct of the bail petitioner in not appearing before the Investigating Officer despite notice and despite proclamation is a well designed attempt to scuttle the investigation and the trial, with the object of causing undue advantage to the accused including his brother-in-law and therefore due to her non-cooperative conduct and the material pointing out the prima facie accusation whereby, the bail petitioner had resorted to the sale, purchase or Inter-State-Import of prohibited ::: Downloaded on - 24/05/2024 20:31:36 :::CIS
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contraband is writ large. In these circumstances, in larger societal interests the prayer of the petitioner for enlargement on bail is devoid of any merit and the same .
is disallowed.
11. In view of the above discussion, the instant petition is dismissed, and the prayer of the bail petitioner, [Sumandeep Kaur], for enlargement on bail is rejected.
12. The observations contained in this judgment, shall not be construed, in any manner, as an indictive of findings, either for the purposes of investigation or the proceedings thereafter, including trial, if any against either of the parties.
13. In view of the order passed today, this Court directs the State Authorities/Police to take consequential action in the matter in accordance with law.
(Ranjan Sharma) Judge May 02, 2024 [tm/Bhardwaj] ::: Downloaded on - 24/05/2024 20:31:36 :::CIS