Punjab-Haryana High Court
Davinder Singh vs State Of Punjab on 22 February, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:033681
CRM-M-3981-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-3981-2023
Reserved on: 08.02.2023
Pronounced on: 22.02.2023
Davinder Singh ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. B.S. Bhalla, Advocate,
for the pe oner.
Mr. Virat Rana, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta/on Sec/ons
131 23.11.2022 Badhni Kalan, District 21 of NDPS Act (Sec on 29 of
Moga NDPS Act added later on)
1. The pe oner, apprehending arrest for selling viola ng the above-men oned provisions of Narco cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap oned above, has come up before this Court under Sec on 438 CrPC seeking an cipatory bail.
2. In paragraph 9 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Dated Offences Police Sta/on
1. 56 27.05.2014 15, 18, 20, 21, 22 of NDPS Act Sadar Moga
2. 213 03.10.2017 22 of NDPS Act Baghapurana
3. 37 12.02.2018 457, 380, 427, 506, 511, 365, 354, City South,
447 IPC and 25, 27 of Arms Act Moga
4. 452 23.10.2015 399, 402 IPC, 25 & 30 of Arms Act Rai Singh Nagar
(Raj)
5. 133 13.09.2014 22 of NDPS Act Sagar Moga
3. Pe oner's counsel prays for bail by imposing any stringent condi ons. Counsel for the pe oner contends that the custodial inves ga on would serve no purpose whatsoever, and the pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
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4. While opposing the bail, including the interim protec on, Ld. counsel represen ng the State contends that given the criminal past, the accused is likely to indulge in crime once released on bail.
REASONING:
5. Sec on 22 of NDPS Act makes heroin an offence and the necessary descrip on would refer to the following:
Substance Name Heroin/ Chi5a/ Smack
Quan/ty detained (in Grams) 50
Quan/ty type Intermediate
Drug Quan/ty in % to commercial
20.00%
quan/ty
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No/fica/on No S.O.1055(E) dated 10/19/2001 Sr. No. 56 Common Name (Name of Narco/c Drug and Psychotropic Substance Heroin (Interna/onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quan/ty (in gm.) 5 Commercial Quan/ty (in gm.) 250
6. Thus, the quan ty allegedly involved in this case is not commercial. Given this, the rigours of S. 37 of the NDPS Act do apply in the present case.Sec on 2 (vii-a) of the NDPS Act defines commercial quan ty as the quan ty greater than the quan ty specified in the schedule. Sec on 2 (xxiii-a) defines small quan ty as a quan ty less than the quan ty specified in the table of the NDPS Act. The remaining quan ty falls in an undefined category, generally called an intermediate quan ty. All Sec ons in the NDPS Act, which specify an offence, also men on the minimum and maximum sentence, depending upon the quan ty of the substance. The commercial quan ty mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. When the quan ty is less than commercial, the restric ons of Sec on 37 of the NDPS Act will not aEract, and the factors for bail become similar to the offence regular statutes.
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7. In Sami Ullaha v Superintendent Narco c Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quan ty, the rigors of the provisions of Sec on 37 may not be jus fied.
8. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds, [10]. It is not in dispute and highlighted that the second respondent is a siKng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiEal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdic on of the Court etc.
9. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail pe on of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the an thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa on Reports, wherein the bail pe oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu ons resul ng in acquiEal or discharge, or when Courts quashed the FIR; the prosecu on stands withdrawn, or prosecu on filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
10. It remains undisputed that the weight of heroin involved in present case is 50 grams. The recovery was from the main accused, who disclosed to the police about the pe oner being its seller. Given the quality of evidence against the pe oner, which is in the nature of disclosure statement, and the quan ty being intermediate and 20% of commercial, the pe oner makes a case for bail. In the previous cases, the quan ty involved was not huge as such the criminal history of the pe oner is not being considered against him as a factor for denying bail, and the pe oner is en tled to bail at this stage.
11. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons tu onal Bench of Supreme Court held that the bail decision must enter the cumula ve effect of the variety of circumstances jus fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en tled to bail if the Court concerned concludes that the prosecu on has 3 3 of 8 ::: Downloaded on - 01-03-2023 22:43:27 ::: Neutral Citation No:=2023:PHHC:033681 CRM-M-3981-2023 failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa sfac on for the need to release such person on bail, in the given fact situa ons. The rejec on of bail does not preclude filing a subsequent applica on. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situa on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances sugges ve of fleeing from jus ce or thwar ng the course of jus ce or crea ng other troubles in the shape of repea ng offences or in mida ng witnesses and the like by the pe oner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the pe oner to avoid the course of jus ce and must weigh when considering the ques on of jail. So also, the heinousness of the crime. In Gudikan Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega ve criteria necessita ng that course. In Prahlad Singh Bha v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considera ons. In Dataram Singh v State of UEar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is en rely within the discre on of the judge hearing the maEer and though that discre on is unfeEered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
12. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Sec on 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves ga on of the police. While exercising utmost restraint, the Court can impose condi ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves ga on.
13. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail, subject to the following terms and condi ons, which shall be over and above and irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
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14. In Mahidul Sheikh v. State of Haryana, CRM-33030-2021 in CRA-S-363-2020, decided on 14-01-2022, Para 53, [Law Finder Doc Id # 1933969],this Court observed, [53]. The pragma c approach is that while gran ng bail with sure es, the "Court" and the "Arres ng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or crea ng a lien over his bank account. The accused should also have a further op on to switch between the modes. The op on lies with the accused to choose between the sure es and deposits and not with the Court or the arres ng officer.
15. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above, in the following terms:
(a). Pe oner to furnish personal bond of Rs. Ten thousand (INR 10,000/-); AND
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa sfac on of the concerned inves gator/SHO. Before accep ng the surety, the concerned officer must sa sfy that if the accused fail to appear in court, then such surety can produce such accused before the court.
OR
(b) Pe oner to hand over to the concerned inves gator/SHO a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favour of the 'Chief Judicial Magistrate' of the concerned district. The fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the pe oner's account.
(c). In case of the launching of the prosecu on, the said fixed deposit be forwarded to the concerned court along with the police report/challan under 173 CrPC.
(d). Such court shall have a lien over the deposit un l the case's closure, or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(e). It shall be the discre on of the pe oner to choose between surety bonds and fixed deposits. It shall also be open for the pe oner to apply to the Inves gator or the concerned court to subs tute the fixed deposit with surety bonds and vice-versa.
(f). On the reverse page of personal bond, the pe oner shall men on her/his permanent address along with the phone number, preferably that numbers which is linked with the AADHAR, and e-mail (if any). In case of any change in the above par culars, the pe oner shall immediately and not later than 30 days from such modifica on in mate about the change to the concerned police sta on and the concerned court.
(g). The pe oner is to also execute a bond for aEendance in the concerned court(s) as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.
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16. The pe oner is directed to join the inves ga on within seven days and also as and when called by the Inves gator. The pe oner shall be in deemed custody for Sec on 27 of the Indian Evidence Act. The pe oner shall join the inves ga on as and when called by the Inves ga ng Officer or any Superior Officer; and shall cooperate with the inves ga on at all further stages as required. In the event of failure to do so, it will be open for the prosecu on to seek cancella on of the bail. Whenever the inves ga on occurs within the police premises, the pe oner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
17. The pe oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
18. Within fiZeen days from today, the pe oner shall procure a smartphone and inform its IMEI number and other details to the SHO/I.O. of the Police sta on men oned before. The pe oner shall always keep the phone loca on/GPS on the "ON" mode. Whenever the Inves ga ng officer asks to share the loca on, the pe oner shall immediately do so. The pe oner shall neither clear the loca on history, WhatsApp chats, calls nor format the phone without permission of the concerned SHO/I.O. This condi on shall con nue ll the comple on of the trial or closure of case, whatever is earlier.
19. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe oner shall surrender all weapons, firearms, ammuni on, if any, along with the arms license to the concerned authority within fiZeen days from today and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case of acquiEal in this case, provided otherwise permissible in the concerned rules.
20. Within fiZeen days from today, the pe oner shall forward to the Inves gator/SHO and the complainant/vic m(s) the complete details of bank account numbers with addresses, fixed deposits, DEMAT account numbers, the current market value of jewellery, sovereign metals, all precious ar cles, held either individually or jointly, and cash-in-hand.
21. During the trial's pendency, if the pe oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi on as s pulated in this order, it shall always be permissible to the respondent to apply for 6 6 of 8 ::: Downloaded on - 01-03-2023 22:43:27 ::: Neutral Citation No:=2023:PHHC:033681 CRM-M-3981-2023 cancella on of this bail. It shall further be open for any inves ga ng agency to bring it to the no ce of the Court seized of the subsequent applica on that the accused was earlier cau oned not to indulge in criminal ac vi es. Otherwise, the bail bonds shall remain in force throughout the trial and aZer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
22. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behaviour. If the pe//oner again indulges in drugs, then while considering grant of bail in such cases, the concerned Courts may keep it as a factor that this Court had granted a final opportunity to the pe//oner to med his ways.
23. The condi ons men oned above imposed by this court are to endeavour that the accused tries to refer, does not repeat the offence and to ensure the safety of the society. In Mohammed Zubair v. State of NCT of Delhi, Writ Pe on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor onal to the purpose of imposing them. The courts while imposing bail condi ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi ons that would result in the depriva on of rights and liber es must be eschewed."
24. Any Advocate for the pe oner and the Officer in whose presence the pe oner puts signatures on personal bonds shall explain all condi ons of this bail order in any language that the pe oner understands.
25. If the pe oner finds bond amount beyond social and financial reach, it may be brought to the no ce of this Court for appropriate reduc on. Further, if the pe oner finds bail condi on(s) as viola ng fundamental, human, or other rights, or causing difficulty due to any situa on, then for modifica on of such term(s), the pe oner may file a reasoned applica on before this Court, and aZer taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condi on.
26. This order does not, in any manner, limit or restrict the rights of the Police or the inves ga ng agency from further inves ga on as per law.
27. In case the Inves gator/Officer-In-Charge of the concerned Police Sta on arraigns another sec on of any penal offence in this FIR, and if the new sec on prescribes maximum sentence which is not greater than the sec ons men oned above, then this bail order shall be deemed to have also been passed for the newly added sec on(s).
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28. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
29. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a est it to be a true copy. In case the a es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a es ng bonds.
Pe//on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
22.02.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2023:PHHC:033681
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