Chaman Lal vs State Of Himachal Pradesh

Anoop Chitkara, J

For possessing 105 grams of charas, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 94 of 2019, dated May 9,

2019, registered under Section 20-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called “NDPS Actâ€), in Police

Station Nurpur, Distt. Kangra,, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.

While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to have telephonic instructions in the

matter from the concerned Police Station, and to procure status report at the earliest, either through WhatsApp/ e-mail and forward the same to this

Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on

his WhatsApp number/e-mail.

Mr. Nand Lal Thakur, learned Addl. Advocate General has filed the status report through e-mail, printout whereof has been placed on record.

I have read the status report(s) and heard Mr. Manoj Pathak, learned counsel for the bail petitioner and Mr. Nand Lal Thakur, learned Additional

Advocate General for the State of Himachal Pradesh, through video conference.

The petitioner did not file any power of attorney. To contain the spread of Novel Corona Virus, the Epidemiologists have advised to maintain social

distancing in the entire world. Consequently, to avoid unnecessary congregation, this Court exempts the petitioner from filing the power of attorney.

Mr. Nand Lal Thakur, Ld. Additional Advocate General submits that he has posted the report to this Court through e-mail. He further submits that

he has also sent a copy of the status report to Mr. Manoj Pathak, learned Counsel for the petitioner on his WhatsApp number.

Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC, before this Court. However, vide order dated Jan 23,

2020, passed in Cr.MP(M) No. 158 of 2020, this Court had dismissed the petition.

FACTS

The gist of the First Information Report and the status report is that on 9.5.2019, the police party was present in a vehicle alongwith IO Kit,

Electronic Scale and Search Light for the purpose of patrolling and detection of crime. At around, 6:35 p.m., 200 meters ahead at a place known as

Chhatroli, the Police noticed one person walking towards Thangar Chowk. On seeing the Police, the said person got perplexed and started walking in

the reverse direction and then started running. He took out some packet from the right pocket of his Knicker and threw it into the bushes. On this, the

Police party nabbed the said person. On inquiry, he revealed his name as Chaman Lal, the present petitioner. After that, the Police party tried to

associate independent witnesses and one Puran Chand was associated. In the presence of such witness, the Police lifted the said Polythene packet

and on opening the same, it contained Canabis. On weighing the same, it was found to be 105 grams. Subsequently, the Police party also complied

with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner.

PREVIOUS CRIMINAL HISTORY

As per the status report the following cases are registered against the pe-titioner:-

(I) Case FIR No.281/04 dated 29.8.2004 under Section 20-61- 85 of ND&PS Act;

(ii) Case FIR No.313/04 dated 29.9.2004 under Sections 341, 323, 324 of IPC;

(iii) Case FIR No.391/04 dated 9.12.2004 under Section 411 IPC;

(iv) Case FIR No.57/05 dated 25.2.2005 under Section 365, 34 IPC;

(v) Case FIR No.30/05 dated 28.1.2005 under Section 20 of ND&PS Act.

(vi) Case FIR No.58/06 dated 17.2.2006 under Section 325 of IPC;

(vii) Case FIR No.95/10 dated 7.3.2010 under ND&PS Act;

(viii) Case FIR No.303/16 dated 30.9.2016 under Section 20 of ND&PS Act;

(ix) Case FIR No.254/10 dated 20.12.2010 under Section 20 of ND&PS Act;

(x) Case FIR No.350/15 dated 29.12.2015 under Section 20 of ND&PS Act; and

(xi) Case FIR No.70/13 dated NIL, under Section 20 of ND&PS Act.

It has specifically been stated that in FIR No. 254 of 2010 the accused was convicted under Section 20 of the NDPS Act and sentenced to

imprison- ment for a period of four years with fine of Rs.40,000/-.

SUBMISSIONS:

The learned counsel for the bail petitioner submits that the allegations against the petitioner are false and he has nothing to do with the said allega-

tions. He further states that petitioner is a young man having responsibility of his family and also submitted that his bail petition be considered on

humanitar-ian grounds in view of the spread of the Covid-19 pandemic.

ANALYSIS AND REASONING:

Pre-trial incarceration needs justification depending upon the heinous nature of the offense, 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 victim(s) and/or 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.

Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a),

defines a small quantity as the quantity lesser than the quantity specified in the schedule of 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 following aspects are relevant to decide the present bail petition:

(a) Although there is criminal history of the bail petitioner and on this ground previously this Court had rejected the bail application of the petitioner.

But keeping in view the current Covid-19 pandemic, the petitioner has come up again before this Court on the grounds that his family is facing

extreme financial difficulty and the family is extremely concerned about each other. Without this case being cited as a precedent, keeping in view the

peculiar circumstances coupled with the fact that the charas recovered from the petitioner was just 105 grams, whereas, small quantity is lesser than

100 grams, and consequently the quantity involved in this case is extremely close to small quantity with difference of just five grams, this Court is

inclined to afford last opportunity to the Petitioner to mend his ways, making it very clear that in case, the petitioner repeats the offence, then this bail

is liable to be cancelled and the State shall file application for cancellation of the present bail and it shall also be a factor for future bail applications of

the petitioner.

(b) As per the FIR, the substance involved is charas, mentioned at Sr. No. 23 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS

Act, specifying small and commercial quantities of drugs and psychotropic substances.

(c) The quantity of drug involved is less than Commercial Quantity but greater than Small Quantity. As such the rigors of Section 37 of NDPS Act

shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence.

(d) The material aspect of the investigation is almost complete and challan stands filed in the Court having competent jurisdiction.

(e) The petitioner is in judicial custody since May 09, 2019.

(f) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured.

(g) Before releasing the petitioner from custody, her/his AADHAR and other proofs of identity ould secure presence during trial.

Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the

Court is granting bail, subject to the following conditions, irrespective of the contents of the bail bonds:

(a) The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum

of Rs.50,000/- (rupees fifty thousand only) with two sureties in the like amount to the satisfaction of the Trial Court or the Court exercising jurisdiction

over the concerned Police Station where FIR is registered. The petitioner be released on his personal bonds and further he shall furnish the surety

bonds on or before Jun 30, 2020, failing which this bail shall automatically stand cancelled and the petitioner shall surrender on Jul 1, 2020, before the

Superintendent of Jail, from where he is being released. The Court is dispensing with the requirement of furnishing surety bonds at this stage to avoid

travelling of persons to furnish the sureties, to abide by the lockdown ordered by the Government for the safety of the people, by maintaining social

distancing to contain the spread of the Covid-19 disease.

(b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of section 437-A of the CrPC.

(c) 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 treatment, indecent language etc.

(d) The petitioner shall fully co-operate in the investigation and shall not hamper it, in any manner what so ever.

(e) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s).

(f) 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 her from disclosing such facts to the Police, or the Court, or tamper with the evidence.

(g) The petitioner shall appear before the trial Court, on issuance of summons/warrant by such Court.

(h) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through

phone/mobile/SMS/WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not

appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in

appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial

custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him.

(i) The petitioner shall attend the trial on each date, unless exempted.

(j) In case of Non-appearance on the intimated date, 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, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to

reimburse the State shall entitle the trial Court to order 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 only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in

that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

(k) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the

Court had cautioned the accused not to repeat the offence.

(l) In case the petitioner commits any fresh offence during the bail, then he shall intimate the SHO of the present police station, with all the details of

the present and the new FIR, within thirty days of the knowledge of such fresh FIR. In such a situation, it shall be open for the State, if it deems fit

and proper, to apply to the trial Court, and in case the trial is yet to commence then to this Court, for cancellation of this bail. The trial Court on receipt

of such application shall be competent to cancel the bail if it so decides.

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

today.

(n) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address,

within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court.

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

the petitioner, and even the trial Court shall be competent to cancel the bail.

In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human right, or faces any other difficulty due

to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance,

before the Court taking cognizance or the trial Court, as the case may be.

The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the

petitioner, in vernacular.

The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all

such conditions.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal

bond in the aforesaid terms.

The Court executing the personal bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The

petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if

available, on the reverse page of the personal bonds. The petitioner shall also furnish details of personal bank account.

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

the Police report under Section 173(2) CrPC, and after that with permission from the concerned Court.

The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the

petitioner.

The SHO/Additional SHO of the concerned Police Station or the Investigating Officer shall send a copy of this order, preferably a soft copy, to

the complainant.

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 petition stands allowed in the terms mentioned above.

The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a

copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the personal bonds shall not insist upon the certified

copy of this order, and shall download the same from the website of this Court, which shall be sufficient for the purposes of the record.

The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Ld. Advocate General, if they

ask for the same.