Davinder Singh vs State Of Punjab

Anoop Chitkara, J

FIR No.

Dated

Police Station

Sections

131

23.11.2022

Badhni Kalan, District Moga

21 of NDPS Act (Sections 29 of NDPS Act added later on)

The peoner, apprehending arrest for selling vio lang the above-menoned provisions of Narcocs Drugs and Psychotropic Subst ances Act, 1985 (NDPS Act) per the FIR caponed above, has come up before this Court u nder Section 438 CrPC seeking ancipatory bail.

In paragraph 9 of the bail applicaon, the accuse d declares the following criminal antecedents:

Sr. No.

FIR No.

Dated

Offences

Police Station

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, 447 IPC and 25, 27 of Arms Act

City South, 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

Peoner's counsel prays for bail by imposing any stringent condions. Counsel for the peoner contends that the custodial inves gaon would serve no purpose whatsoever, and the pre-trial incarceraon would ca use an irreversible injusce to the peoner and family.

While opposing the bail, including the interim protecon, Ld. counsel represenng the State contends that given the crimi nal past, the accused is likely to indulge in crime once released on bail.

REASONING:

Section 22 of NDPS Act makes heroin an offence and the necessary descripon would refer to the following:

Substance Name

Heroin/ Chitta/ Smack

Quantity detained (in Grams)

50

Quantity type

Intermediate

Drug Quantity in % to commercial quantity

20.00%

Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985

Notification No

S.O.1055(E)

dated

10-19-2001

Sr. No.

56

Common Name

(Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN)

Heroin

Other non-proprietary name

******

Chemical Name

Diacetylmorphine

Small Quantity (in gm.)

5

Commercial Quantity (in gm.)

250

Thus, the quanty 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.Section 2 (vii-a) of the NDPS Act defines commercial quanty as the quanty g reater than the quanty specified in the schedule. Section 2 (xxiii-a) defines small quanty as a quanty less than the quanty specified in the table of the NDPS Act. The remaining quanty falls in an undefined category, generally called an intermediate quanty. All Secons in the NDPS Act, which specify an offence, also menon the minimum and maximum sentence, depending upon the quanty of the substan ce. The commercial quanty 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 quanty is less than commercial, the restricons of Section 37 of the NDPS Act will not aract, and the factors for b ail become similar to the offence regular statutes.

In Sami Ullaha v Superintendent Narcoc Control B ureau, (2008) 16 SCC 471, the Hon’ble Supreme Court holds that in intermediate quanty, the rigors of the provisions of Section 37 may not be jusfied.

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 sing Member of Parliament facing several crimina l cases. It is also not in dispute that most of the cases ended in acquial 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 jurisdicon of the Court etc.

In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed,

While considering each bail Pettion of the accused w ith a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the anthesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informaon Reports, wherein the bail peoner stand s arraigned as an accused. In reckoning the number of cases as criminal history, the prosecuons resulng in acquial or discharge, or w hen Courts quashed the FIR; the prosecuon stands withdrawn, o r prosecuon 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.

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 peoner being its seller. Given the quality of evi dence against the peoner, which is in the nature of disclosure statement, and the quanty being intermediate and 20% of commercial, the peoner makes a case for bail. In the previous cases, the quanty involved was not huge as such the criminal history of the peoner is not being considered against him as a factor for denying bail, and the peoner is entled to bail at this stage.

In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constuonal Bench of Supreme Court held that the b ail decision must enter the cumulave 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 entled to bail if the Court concerned concludes that the prosecuon 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 sasf acon for the need to release such person on bail, in the given fact situaons. The re jecon of bail does not preclude filing a subsequent applicaon. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situaon. 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 suggesve of fleeing from jusce or th warng the course of jusce or creang other troubles in the shape of repeang offe nces or inmidang witnesses and the like by the peoner who seeks enlargement on b ail from the Court. It is true that the gravity of the offence involved is likely to induce the peoner to avoid the course of jusce 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 negave 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 consideraons. In Dataram Singh v State of Uar Pradesh , (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is enrely within the discreon of the judge hearing the maer and though that discreon is unfeered, it mu st be exercised judiciously, compassionately, and in a humane manner. Also, condions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

The possibility of the accused influencing the invesgaon, tampering with evidence, inmidang witnesses, and the likelihood of fleeing jusce, can be taken care of by imposing elaborave and stringent condions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constuonal Bench held that unusually , subject to the evidence produced, the Courts can impose restricve condion s. 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 Section 438 of the Code, the Court is duty-bou nd to strike a balance between the individual's right to personal freedom and the right of invesgaon of the police. While exercising utmost restraint, the Court can impose condions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered invesgaon.

Without commenng on the case's merits, in the fact s and circumstances peculiar to this case, and for the reasons menoned above, t he peoner makes a case for bail, subject to the following terms and condions, which shall be over and above and irrespecve of the contents of the form of bail bon ds in chapter XXXIII of CrPC, 1973.

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 pragmac approach is that while granng ba il with surees, the “Court” and the “Arresng Officer” shoul d 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 creang a lien over his bank account. The accused should also have a further opon to switch between the modes. The opon lies with the accused to choose between the s urees and deposits and not with the Court or the arresng officer.

Given above, provided the peoner is not requir ed in any other case, the peoner shall be released on bail in the FIR capo ned above, in the following terms:

(a). Peoner 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 sasfacon of the concerned invesgator/SHO. Before accepng the surety, the concerned officer must sasfy that if the accused fail to appear in c ourt, then such surety can produce such accused before the court.

OR

(b) Peoner to hand over to the concerned invesga tor/SHO a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automac renewal of the principal and the interest reverng to the linked account, ma de 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 peoner’s account.

(c). In case of the launching of the prosecuon, th e 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 unl the case's closure, or discharged by substuon, or up to the expiry of the period me noned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the enre amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.

(e). It shall be the discreon of the peoner to c fixed deposits. It shall also be open for the Pettion concerned court to substute the fixed deposit with hoose between surety bonds and er to apply to the Invesgator or the surety bonds and vice-versa.

(f). On the reverse page of personal bond, the pe oner shall menon 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 parculars, the peoner shall immediately and not later than 30 days from such modificaon inmate about the change to the concerne d police staon and the concerned court.

(g). The peoner is to also execute a bond for ae ndance in the concerned court(s) as and when asked to do so. The presentaon of the per sonal bond shall be deemed acceptance of the declaraons made in the bail pe on and all other spulaons, terms, and condions of Section 438(2) of the Code o f Criminal Procedure, 1973, and also of this bail order.

The peoner is directed to join the invesgaon within seven days and also as and when called by the Invesgator . The peoner shall be in deemed custody for Section 27 of the Indian Evidence Act. The peoner shall join the invesgaon as and when called by the Invesgang Officer or any Superio r Officer; and shall cooperate with the invesgaon at all further stages as requi red. In the event of failure to do so, it will be open for the prosecuon to seek cancellaon of the bail. Whenever the invesgaon occurs within the police premises, the peoner 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.

The peoner shall not influence, browbeat, press urize, 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.

Within fieen days from today , the peoner shall procure a smartphone and inform its IMEI number and other details to the SHO/I.O. of the Police staon menoned before. The peoner shall always keep the phone locaon/GPS on the “ON” mode. Whenever the Invesgang officer asks to s hare the locaon, the peoner shall immediately do so. The peoner shal l neither clear the locaon history, WhatsApp chats, calls nor format the phone without permission of the concerned SHO/I.O. This condion shall connue ll the compleon of the trial or closure of case, whatever is earlier.

Given the nature of the allegaons and the other circumstances peculiar to this case, the peoner shall surrender all weapons, fire arms, ammunion, if any, along with the arms license to the concerned authority within fieen days from today and inform the Invesgator about the compliance. Howeve r, subject to the Indian Arms Act, 1959, the peoner shall be entled to renew and ta ke it back in case of acquial in this case, provided otherwise permissible in the concerned rules.

Within fieen days from today, the peoner shall forward to the Invesgator/SHO and the complainant/vicm(s) the co mplete details of bank account numbers with addresses, fixed deposits, DEMAT account numbers, the current market value of jewellery, sovereign metals, all precious arcles, held either individually or jointly, and cash-in-hand.

During the trial's pendency, if the peoner rep eats or commits any offence where the sentence prescribed is more than seven years or violates any condion as spulated in this order, it shall always be permiss ible to the respondent to apply for cancellaon of this bail. It shall further be open for any invesgang agency to bring it to the noce of the Court seized of the subsequent applicaon that the accused was earlier cauoned not to indulge in criminal acvie s. Otherwise, the bail bonds shall remain in force throughout the trial and aer that in Section 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condio ns.

In return for the protecon from incarceraon, the Court believes that the accused shall also reciprocate through desirable behaviour. If the peoner 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 peoner to med his ways.

The condions menoned above imposed by this cou rt 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 Pettion (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 condions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proporonal to the purpose of imposing them. The courts while imposing bail condions must balance the liberty of the accused and the necessity of a fair trial. While doing so, condions that would result in the deprivaon of rights and liberes must be es chewed.”

Any Advocate for the peoner and the Officer in w hose presence the peoner puts signatures on personal bonds shall explain all condions of this bail order in any language that the peoner understands.

If the peoner finds bond amount beyond social and financial reach, it may be brought to the noce of this Court for appropriate reducon. Further, if the peoner finds bail condion(s) as violang fundamental, huma n, or other rights, or causing difficulty due to any situaon, then for modificaon o f such term(s), the peoner may file a reasoned applicaon before this Court, and a er 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 condion.

This order does not, in any manner, limit or restrict the rights of the Police or the invesgang agency from further invesgaon as per law.

In case the Invesgator/Officer-In-Charge of the c oncerned Police Staon arraigns another Section of any penal offence in this FIR, and if the new Section prescribes maximum sentence which is not greater than the sec ons menoned above, then this bail order shall be deemed to have also been passed for the newly added secon(s).

However, suppose the newly inserted secons prescri be a sentence exceeding the maximum sentence prescribed in the secons menoned above, then, in that case, the Invesgator/Officer-In-Charge shall give the peoner noce of a minimum of seven days providing an opportunity to avail the remedies available in law.

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

There would be no need for a cerfied copy of this o rder for furnishing bonds, and any Advocate for the Peoner can download this ord er along with case status from the official web page of this Court and aest it to be a true copy. In case the aesng officer wants to verify the authencity, such an officer can also verify its authencity and may download and use the downloaded copy for aesng bo nds.

Pettion allowed in aforesaid terms . All pending applicaons, if any, stand disposed.