Bir Chand vs State Of H.P

Anoop Chitkara, J

For selling 174 grams of charas to co-accused Manohar Lal and now apprehending imminent arrest on being arraigned as an accused in FIR number 126/2019, registered under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), in Police Station, Panchrukhi, District Kangra, HP, disclosing non-bailable offences, the petitioner has come up under Section 438 CrPC, seeking anticipatory bail.

Mr. Nand Lal Thakur learned Additional Advocate General had filed the status report through e-mail, printout of which is available on file.

I have read the status report(s) and heard Mr. N.S. Chandel, Senior Advocate assisted by Mr. Vinod Kumar Gupta, Advocate for the petitioner, Mr. Nand Lal Thakur, Learned Additional Advocate General for the respondent.

FACTS:

The allegations in the First Information Report and the gist of the evidence collected by the Investigator are that on 8th December, 2019, the Investigating Officer received a secret information that the accused Manohar Lal indulges in sale of charas in his Karyana shop. After believing the information as authentic and following the procedure prescribed under Section 42(2) of the NDPS Act, the I.O. associated independent witnesses and reached the shop of accused Manohar Lal. After that the police informed accused Manohar Lal that they have to conduct search of his shop and also allegedly asked him about his legal rights under Section 51 of the NDPS Act to which he did not take any benefit. On search of the shop, the police recovered charas, which when weighed was found 174 grams and also 24 bottles of country liquor. After that the police arrested said Manohar Lal for the said offences. During the interrogation, he told the police that he has purchased the said charas from the bail petitioner Bir Chand.

PREVIOUS CRIMINAL HISTORY

The Counsel for the Petitioner states on instructions that there is no previous criminal history, and the status report does not dispute it.

SUBMISSIONS:

The learned counsel for the bail petitioner submits that the allegations are false and concocted.

On the contrary, Mr. Nand Lal Thakur, learned Additional Advocate General, contended that the Investigator has come across sufficient prima facie evidence against the petitioner and opposes the bail. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

ANALYSIS AND REASONING:

Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. S. 2 (xxiii-a) defines a small quantity as the quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates 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.

The contraband involved prima facie is not a Commercial quantity. As such, the rigors of Section 37 of the NDPS Act shall not apply in the present case. Resultantly, the present case is similar to other instances of the grant of bail in a penal offence.

Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, 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.

The nature of the offence does not restrict bail. The possibility of the petitioner influencing the course of the investigation, or tampering with evidence (including intimidating witnesses), the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions.

Deciphering the FIR makes out a case for bail. While deciding bail, this Court cannot discuss the evidence threadbare.

The petitioner is a permanent resident of Village Tikkar, P.O. Bal, Tehsil Paddar, District Mandi, H.P., therefore, his presence can always be secured.

Given the above reasoning, the Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 20,000/, (INR Twenty thousand only), with one surety in the like amount, to the satisfaction of the Investigator/ SHO of the concerned Police Station. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:

a) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).

b) 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.

c) The petitioner shall join and cooperate in the investigation, and failure to do so shall entitle the prosecution to seek cancellation of the anticipatory bail granted by the present order. (Kala Ram v. State of Punjab, 2018 (11) SCC 350).

d) The petitioner shall not influence, threaten, browbeat, or pressurize the witnesses and the Police officials.

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 appellant 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.

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 through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court.

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) In case of Non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

l) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within ten days from such modification, to the police station of this FIR, and the concerned Court, if such stage arises.

m) 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.

n) During the trial's pendency, if the petitioner commits any offence under NDPS Act or commits any offence where the sentence prescribed is seven years or more, then the State may move an appropriate application for cancellation of this bail.

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.

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.

The learned counsel representing the accused as well as 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.

In Sushila Aggarwal, the Constitutional bench concluded by holding as follows:

(2) As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.

(3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

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.

The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner.

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.

The Investigating Officer attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner and the Learned Advocate General if they ask for the same.

The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.