Himachal Pradesh High Court
Skyc Anthony @ Bro @ Brabo vs State Of H.P on 10 December, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No.1920 of 2020.
Date of Decision : December 10, 2020.
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SKYC Anthony @ Bro @ Brabo ...Petitioner.
Versus
State of H.P. ....Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.
For the petitioner r : Mr. Mohan Singh, Advocate.
For the respondent : Mr. Ram Lal Thakur, Asstt. A.G.
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE Anoop Chitkara, Judge (oral).
The petitioner, who is citizen of Nigeria and holder of passport No. A09778870, has come up before this Court on being arrested for selling 16.6 grams of Heroin to the main accused Vikram Singh.
2. Based on a complaint, the police arrested the petitioner on 05.09.2019, in FIR No.47 of 2019, dated 30.08.2019, registered under Section 21 & 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), in Police Station, Kasauli, District Solan, Himachal Pradesh, disclosing cognizable and non-bailable offences.
3. The contents of the petition and the status report do not reveal any criminal history.
4. The gist of the First Information Report and the investigation is as follows:
"a) On 30.8.2019, Constable Pawan Kumar produced a Ruka at police post Kuthaar informing therein that while the police party was on patrolling near Bishanpur -Rampur road then at 3 a.m. (night) they saw a 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 11/12/2020 20:16:56 :::HCHP 2
man coming from the side of Kuthaar carrying a carry bag, who on seeing the police party became perplexed and tried to run away from the spot after throwing the carry bag. On suspicion, the accused was apprehended, who .
told his name as Vikram Singh @ Vicky (petitioner herein). The carry bag which was thrown by the accused was searched. A black coloured bag was found inside the carry bag along with an electronic weighing machine and a transparent polythene containing yellow coloured substance which was identified as Heroin. The weight of the contraband was found to be 16.6 grams. During investigation one other person named Bro from whom the present petitioner allegedly purchased the contraband was also apprehended from Delhi. After that the Investigating Officer completed the procedural requirement under NDPS Act and under Cr.PC.
b) The above said contraband was sent to FSL, Junga, which gave the following opinion:-
" The exhibit stated as hereoin is a sample of Diacetyl morphine (Heroin)."
c) Thereafter, the other procedural formalities were completed and the FIR No.47 of 2019, dated 30.8.2019, under Section 21 of NDPS Act was registered. On coming to know about the involvement of a person named Brabo, the police also added Section 29 of NDPS Act in the Said FIR.
d) During investigation, accused Vikram Singh gave the phone number of the person from whom he had purchased the said heroin. The I.O. made Vikram Singh to speak to the said person and the Police initiated a decoyed and controlled deal. Working on the said script, the accused Vikram Singh called the said person and asked him to deliver the Heroin near Dwarka Metro Station. When he reached there, the investigator nabbed him and brought him to Police Station, Kasauli, who revealed his name as SKYC Anthony @ Bro, the petitioner herein. The cuused further told the police that he had visited the Mizoram in the year 2014, where he had married a local girl and the couple have a daughter from the said wedlock. He further told that he is a professional Singer and a Dancer.
::: Downloaded on - 11/12/2020 20:16:56 :::HCHP 3Based on such information, the Police arrested him in the said FIR and arraigned him as an accused and arrested on 5.9.2019."
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5. Learned counsel for the petitioner argues that it was wrong on the part of the Police to have arrested the accused solely on the basis of statement of co-accused, which could not have been used in evidence. He further contends that the approach of the Himachal Pradesh Police has caused grave injustice to a poor foreign national and send a wrong message about our country. Be that as it may, this Court refrains from expressing any opinion about these arguments, because these did not form part of the petition, and thus, the State had no opportunity to explain its stand.
6. On 8.12.2020, this court has passed the order to ascertain the identity of the accused. The said order is extracted as follows:
" Mr. Mohan Singh, Advocate learned counsel for the petitioner submits that Mr. H.N. Kashyap, Advocate, who is practicing at District Court Solan, had handed over to him the passport of the petitioner. Mr. Mohan Singh had supplied the photocopy of the passport to this Court and one copy to Mr. Ram Lal Thakur, learned Assistant Advocate General, yesterday. After going through the identity on the passport, the name mentioned in the bail petition and the status report are different than appeared in the passport. Learned counsel for the petitioner submits that due to difficult English name and due to some communication error or may be error on the part of the prosecution, wrong name has been mentioned. Be that as it may, let Mr. Mohan Singh, Advocate hand over the original passport to Mr. Ram Lal Thakur, learned Assistant Advocate General today at the earliest. Immediately, on receipt of the passport, Mr. Ram Lal Thakur, learned Assistant Advocate General to depute a person to deliver it to concerned SHO at the earliest. On receiving the original passport, the SHO/investigator shall verify the identification marks taken while arresting the accused and compare the same with such marks including the photographs on the passport. In case there is need, then the investigator may also visit the prison and compare the petitioner with the photograph on the passport. This exercise shall positively be done by tomorrow. List on 10th December, 2020."
7. In the concluding part of the latest status report, the SHO has mentioned that for the purpose of identification of the petitioner, the police team met him in Model Central Jail, Nahan. On comparison the photograph on the passport of the petitioner resembled. The identification marks obtained at the time of arrest also tallied. On inquiry the petitioner told his name as Anthony Maxwell Izuchukwu.
::: Downloaded on - 11/12/2020 20:16:56 :::HCHP 48. In the petition the name of the petitioner is mentioned as SKYC Anthony @ Bro @ Brabo. In the passport his name is mentioned as Anthony Maxwell Izuchukwu. The possibility of the communication gap or the accused told his nick name, cannot be .
ruled out. Even if it is presumed, the accused was trying to conceal his identity, the accused is in custody for the last about 15 months. The quantity of the contraband is 16.6 grams of Heroin. The small quantity of Heroin less than five grams falls under the smaller quantity and greater than 250 grams falls under the commercial quantity. The maximum sentence provided for smaller quantity is six months. The quantity recovered from the possession of the main accused was 16.6 grams. The accused was arrested only on the statement of co-accused Vikram Singh, which is inadmissible in law. The prosecution did not bring to the notice of this Court any evidence to connect the petitioner with the offence. This Court cannot lose sight of the fact that hypothetically, had the petitioner-accused pleaded guilty in all likelihood, he would have been awarded of sentence, which would be fraction of sentence, which he would have already undergone. Thus even, if there is some intentional error, still it cannot be grounds to continue further incarceration. The presence of the accused can be secured because now his original passport is with the SHO of Police Station, Kasauli, District Solan. Thus, this Court grants bail to the petitioner on his furnishing personal bond. The petitioner is a foreign national. Thus, it would be impossible for him to find local surety. Thus, the petitioner is ordered to be released on bail on his furnishing personal bond to the tune of INR10,000/-. This amount of bail bond is kept on the lower side; firstly, because of the pleadings in the bail petition that the petitioner belongs to very poor family; secondly, that he is in jail for the last more than 15 months for abetting possession of quantity of contraband slightly above small quantity; and thirdly, because he after spending so much time in custody, would not have enough funds to furnish cash security or fixed deposit. Keeping in view the period of incarceration, this leniency may offer some reprieve. However, exceptions do not make the rules and this shall not be cited as a precedent in law. Given above, this petition is allowed and the petitioner is ordered to be released on bail on his furnishing personal bond to the tune of INR10,000/- to the satisfaction of Sessions Judge/Addl. Sessions Judge/Special Judge/Chief Judicial Magistrate/ Additional Chief Judicial Magistrate/Judicial Magistrate 1 st Class, Solan, District Solan.
::: Downloaded on - 11/12/2020 20:16:56 :::HCHP 59. The furnishing of personal bond by the petitioner is acceptance of all such conditions:
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a) The petitioner shall provide his phone number and address to the SHO/Investigator by making a phone call and concerned Police official shall supply their number for that purpose to the petitioner, within ten days of his release.
b) The petitioner shall create e-mail Id and provide the same to the SHO/Investigator, within ten days of his release.
c) The trial Court shall consider the framing of charges on top priority and if in the opinion of the trial Court, the accused is liable to be charged for the commission said offences then in that eventuality, the trial Court is requested to conclude the trial on top most priority to enable the petitioner to return to his native place. This request is being made for the reasons that the visa issued by India to the petitioner stood expired on 28 th January, 2020, when he was in judicial custody. It is expected that learned trial Judge shall conclude the trial not later than 31st March 2021.
d) The SHO shall not return the passport to the petitioner without the permission of the trial Court.
10. It is clarified that the present bail order is only with respect to the above- mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.
11. Given the prevalent situation of COVID-19 Pandemic in this part, there is no need to apply for the certified copy of this order. The learned Counsel for the petitioner can download the same from the High Court website and attest the same to be a true copy. Such attested version shall be sufficient for all purposes including attestation of bail bonds.
12. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
Petition stands allowed in the aforesaid terms.
(Anoop Chitkara),
December 10, 2020 (ps) Judge
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