Duale Danu Derick vs State Of H.P

Jyotsna Rewal Dua, J

Petitioner is aged 26 years, a student in India and has Congo nationality. He was arrested on 29.4.2021 in FIR No.48/2021, registered on 29.04.2021

under Section 21 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and Section 14 of Foreigners Act 1947 at

Police Station East Shimla, District Shimla H.P. He is seeking regular bail under Section 439 of the Code of Criminal Procedure.

I have heard learned counsel for the parties and gone through the status report.

The prosecution case against the bail petitioner as it comes out from the status report is that on 29.04.2021 at around 1.30 P.M., a police party,

while on routine patrol duty, noticed a person coming on foot near Astha General Store at Sargheen road. Seeing the police officials, petitioner

appeared visibly perplexed and turned back at fast pace. Getting suspicious, the police officials apprehended him. On questioning, the person

(petitioner) disclosed his details and the fact that he was a foreign national and a student of BBA at APG University Shimla. Since the petitioner was

desperately trying to conceal a bag held by him, therefore, it was thought appropriate by the police officials to carry out his search. Search was carried

out in accordance with law. During this search, from a lower kept inside the bag held by the petitioner, a polythene bag was found containing currency

notes of Rs. 8,000/Â as well as a brown coloured substance, which was ascertained as Heroin. The contraband measured 3.19 grams on the

electronic scale. Entire procedure as contemplated under the Code of Criminal Procedure as well as under the Act was followed leading to

registration of the FIR in question. Petitioner was arrested on 29.04.2021 and is in custody ever since.

During investigation, the petitioner statedly disclosed having purchased the contraband from a lady called James and that he had in past also purchased

the contraband from her. On the basis of information provided by the petitioner about the mobile number of the lady, her cell phone number was kept

on tracking by the prosecuting agency. This was eventually traced to Mafo Teague Julitte alias James. She was also apprehended and arrested on

30.04.2021 at Police Post Shoghi District Shimla. At that relevant time, she carrying 206 grams of heroin alongwith currency notes in all amounting to

Rs.38,750/Â. During investigation, Mafo Teague Julitte statedly disclosed that she is of African origin, has two major daughters settled in Africa and a

minor son residing in Delhi. She further stated to have disclosed that she met the petitioner about two months ago in Delhi and that at petitioner’s,

request she had supplied the contraband to him and to certain other persons in Shimla. She also admitted having brought the contraband weighing 206

grams recovered from her possession, for sale in Shimla. Her passport was found to be valid till 26.10.2020. Recovery of contraband from Mafo

Teague Julitte led to incorporation of Section 29 of the NDPS Act and Section 14 of the Foreigners Act 1947 in the FIR in question.

Learned counsel for the petitioner contended that the petitioner was innocent and has been falsely implicated with the alleged offences. Learned

counsel further submitted that the petitioner is a student of BBA in APG University Shimla and his final exams are to commence from 1st June, 2021.

Investigation in the matter is complete in sofaras the petitioner is concerned. Learned counsel for the petitioner further submitted that as per the status

report, petitioner was found in possession of 3.19 grams of heroin, which is less than small quantity, notified under the Act, therefore, rigors of Section

37 of the Act will not be applicable. Petitioner had no part to play and cannot be construed to be in possession of quantity of contraband allegedly

recovered from Mafo Teague Julitte. Learned counsel further submitted that the petitioner will abide by all the conditions, which may be imposed upon

him in case of grant of bail and that he will not influence the prosecution witnesses or temper with the prosecution evidence in any manner.

Learned Deputy Advocate General, while opposing the bail plea of the petitioner submitted that in case the Court is inclined to grant bail to him then

the same be made subject to stringent conditions.

As per the status report, the quantity of contraband allegedly recovered from the petitioner is 3.19 grams of heroin, which is less than small quantity

notified under the NDPS Act. Status report does not indicate that the petitioner is connected in any manner with the quantity of contraband allegedly

recovered from Mafo Teague Julitte. As per the status report, the petitioner had procured the contraband recovered from said Mafo Teague Julitte for

his self consumption. Status report does not indicate any criminal history of the petitioner. The passport of the petitioner is also valid till 13.02.2023.

Petitioner is a student of APG University Shimla and is to appear for his final examination stated to commence from 1st June, 2021. No recovery

remains to be effected from the bail petitioner. The investigation in the case is almost complete, insofar as the petitioner is concerned. Considering all

these aspects and also the fact that the petitioner is behind the bars w.e.f. 29.04.2021 and that trial would take sufficient time, therefore, no fruitful

purpose would be served in keeping the bail petitioner behind the bars any further that too in the prevailing corona pandemic situation. To ensure that

the petitioner does not indulge in similar activities again, a strict condition is being imposed that in case he is found involved in future in any FIR under

NDPS Act then this bail is liable to be cancelled. Accordingly, the present petition is allowed and petitioner is ordered to be released on bail in FIR

No.48/2021 dated 29.04.2021, registered under Section 21 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act for short) and

Section 14 of Foreigners Act 1947 at Police Station East Shimla, District Shimla H.P., on his furnishing personal bond in the sum of Rs.75,000/Â, with

one surety in the like amount, to the satisfaction of the learned trial Court having jurisdiction over the concerned Police Station. In the alternative, the

petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Seventy five thousand only (INR 75,000/Â), made in favour of ""Chief

Judicial Magistrate, District Shimla, H.P.,

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g.,

Bank of America, Chase, HSBC, HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty

of the interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information

be sent either by e mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as

FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and viceÂ​versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be

endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437ÂA CrPC,

1973, or until discharged by substitution as the case may be.

Further, this bail is being granted subject to the following conditions:Â​

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii) . Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.

(iii) . Petitioner will not leave India without prior permission of the Court.

(iv) . Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the

facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). In case of launching of prosecutor, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in

the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, EÂmail,

PAN Card, Bank Account Number, if any.

(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It

is open for the Investigating Agency to move appropriate application in that regard.

(viii) The petitioner shall deposit his passport, if not, already seized by the Police.

In case of violation of any of the terms & conditions of the bail, respondentÂState shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court

shall decide the matter uninfluenced by any of observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

Copy dasti.