Anil Vekta vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, who is apprehending his arrest on being part of a chain for transporting 4 kilograms 054 grams of Opium, has come up before this

Court seeking bail in FIR No.196 of 2020, dated 2.11.2019, registered under Sections 18-61-85 of the NDPS Act, in Police Station, Theog, District

Shimla, Himachal Pradesh, disclosing cognizable and non-bailable offenses, on the ground that even as per the case of the prosecution, the said opium

was never handed over to him, hence no offence was committed by him.

The petitioner's criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction,

the sentence imposed was more than three years: The contents of the petition and the status report do not reveal any criminal history.

The allegations in the First Information Report and the gist of the evidence collected by the Investigator are that on 2.11.2020, SI Jagjeet Singh

received a secret information that a Nepalize National is likely to visit near Patrol Pump, Theog to hand over the some contraband to another person.

The investigator recorded such information under Section 42(2) NDPS Act and proceeded to visit the spot. On reaching the spot, the investigator

noticed one person, who had features of Nepali person, near HIMFED Godown. The said person was looking for someone. On inquiry, the said

person revealed his name as Mahesh Khattri. He was carrying a bag in his hand. After that the I.O. associated two independent witnesses and in

their presence opened the said bag, which led to recovery of 4 kilograms 054 grams of opium. After complying with the procedure under NDPS Act

and Cr.PC, the investigator sent the information for registration of FIR to Police Station, Theog. On receipt of such information, the investigation was

taken over by Dy. S.P. Vikram Chauhan. Subsequently, the police arrested said Mahesh Khatri on 2. 11.2020, during the night.

In the investigation, said Mahesh Khattri told the investigator that he had been handed over the opium by one Nepalize National named Gobind

Bhantha. He was a part of the link to transport the opium and in Theog, he was supposed to hand over the same to Anil Vekta, the bail petitioner.

Mr. Ram Lal Thakur, learned Assistant Advocate General assisted by Mr. Rajat Chauhan, Law Officer, on instructions from Dy.S.P. Vikram

Chauhan, submitted that there are call details between the phone number of Mahesh Khattri and that of the bail petitioner. The case of the prosecution

is that there are large number of calls w.e.f. 20th October, 2020 upto 2nd November, 2020 i.e. date of arrest of Mahesh Khattri. Dy. S.P. Vikram

Chauhan, has also stated that it has come in the investigation that on 30th October, 2020, the petitioner had withdrawn Rs.6,50,000/- (six lacs fifty

thousand only) from his bank account. He further submits that on the same day an amount of Rs.10,00,000/- (ten lacs only) was deposited in his bank

account and they need to investigate this aspect.

I have seen the status report and also heard Mr. N.S. Chandel, learned Senior Advocate assisted by Mr. R.S. Chandel, Advocate, for the petitioner,

Mr. Ram Lal Thakur, learned Assistant Advocate General assisted by Mr. Rajat Chauhan, Law Officer for the respondent and Mr. Sushmit Bhatt,

Advocate learned Amicus Curiae.

ANALYSIS AND REASONING:

In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the bail

decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh

Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member bench of Supreme Court held that the persons accused of non-bailable offences

are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence

of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The

rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing

requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably

illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or

thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who

seeks enlargement on bail from the court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of

justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. In Gudikanti Narasimhulu v. Public

Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240 ,(Para 16), Supreme Court in Para 16, held that the delicate light of the law favours

release unless countered by the negative criteria necessitating that course. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6),

Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is

unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict

as to be incapable of compliance, thereby making the grant of bail illusory.

Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a

crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s)

and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused,

society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in

the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.

The decision of this Court in Satinder Kumar v. State of H.P., Cr.MP(M) No. 391 of 2020, decided on 4th Aug 2020, covers the proposition of law

involved in this case, wherein this Court has held that Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The ratio of the

decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS Act.

S. 37 of the NDPS Act implies that the accused should satisfy its twin conditions and come out clean. The confessional statement of one of the

accused is legally insufficient to deny bail to the other accused, in the absence of any other incriminating evidence or allegations. Thus, the petitioner

has satisfied the first condition. To take care of the second condition, the petitioner pleaded in Para 11 of bail that he has no criminal history. The State

also does not dispute it. To take care of the second condition, stringent conditions would suffice.

The case of the prosecution is that Mahesh Khattri was a chain in transportation and he had to hand over the opium to the petitioner Anil Vekta. It

is also the case of the prosecution that they had recovered the opium from Mahesh Khattri. The secret information also conveyed that a person of

Nepalize origin is carrying opium and he supposed to deliver it to someone-else. Thus before the said opium could be taken into possession by Anil

Vekta, the investigator arrested Mahesh Khattri. Impliedly, the offence would have completed once the petitioner had taken possession of the opium.

There is no evidence that petitioner had paid the money to Mukesh Khattri. Even if it is assumed that it was the petitioner, who was supposed to take

consignment, still there is a possibility that he could have been changed his mind before taking the possession of the consignment. Even otherwise,

there is no recovery from the petitioner and the chain stopped a step prior to him.

Without commenting on the merits of the evidence collected so far, the confession against co-accused is prima-facie inadmissible, and the points

mentioned above would create reasons to make this Court believe that till now, the petitioner has made out a case for bail. Therefore, in the

cumulative effect of all these factors, the petitioner is entitled to bail. To fulfill the second part of Section 37 of the NDPS Act, this Court can impose

stringent conditions to ensure and satisfy that the accused does not repeat the offence. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the

Constitutional bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons

mentioned above, this Court believes that incarceration of the accused during the period of trial is neither warranted, nor justified, or going to achieve

any significant purpose.

Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and

irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

The petitioner, in the event of arrest, shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One Lac

only (INR 1,00,000/-), and shall furnish two sureties of a similar amount to the satisfaction of the arresting officer. The furnishing of bail bonds shall be

deemed acceptance of all stipulations, terms, and conditions of this bail order:

a) The petitioner to give security to the concerned Court(s), for attendance on every date, unless exempted, and in case of Appeal, also promise to

appear before the higher Court, in terms of Section 437-A CrPC.

b) The petitioner shall give details of AADHAR number, phone number(s) (if available), WhatsApp number (if available), e-mail (if available),

personal bank account(s) (if available), on the reverse page of the personal bonds and the officer attesting the personal bonds shall ascertain the

identity of the bail-petitioner, through these documents.

c) The Attesting officer shall on the reverse page of personal bonds, mention the permanent address of the petitioner along with the above-mentioned

information, whatever is available.

d) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place

within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The

petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.

e) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted

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

f) Once the trial begins, the petitioner shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on

the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of Appeal, also

promise to appear before the higher Court, in terms of Section 437-A CrPC.

g) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place in addition to

standard modes of processing service of summons, the concerned Court may serve the accused through E-Mail (if any), and any instant messaging

service such as WhatsApp, etc. (if any). [Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition

(C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]. The concerned Court may also inform the accused about the issuance of bailable and non-

bailable warrants through these modes mentioned above.

h) In the first instance, the Court shall issue summons and may inform the Petitioner about such summons through SMS/ WhatsApp message/E-Mail.

i) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the

accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/

E-Mail.

j) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's

presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper.

k) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that

even earlier, the Court had cautioned the accused not to do so.

l) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within 10

days from such modification, to the police station of this FIR, and also to the concerned Court.

m) The petitioner shall, within ten days from today, procure a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the Police

station mentioned before. He shall keep the phone location/GPS always on the “ON†mode. Before replacing his mobile phone, he shall produce

the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the I.O., or any officer of the concerned Police

Station, ask him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone

without permission of the concerned I.O. or any officer of the concerned Police Station. In case of failure by the petitioner to comply with this

direction, the I.O shall initiate methods for filing appropriate petition for cancellation of bail.

n) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity, then it shall be open for

the State to apply for cancellation of this bail order.

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

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

p) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days

from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of

acquittal in this case.

The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all

conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking

cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

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

with law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

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

This court expresses its gratitude to Mr. Sushmit Bhatt, Advocate, Ld. Amicus Curiae for excellent assistance.

The petition stands allowed in the terms mentioned above.