Gyan Chand vs State Of Himachal Pradesh

Anoop Chitkara, J

An under-trial prisoner, in custody since 22.8.2019, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Section 20/29 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for getting a deal of sale and transportation of 1.509 kilograms of charas (Cannabis), in connivance with the other accused.

The police arrested the petitioner, in FIR No.222 of 2019, dated 21.8.2019 registered under Sections 20, 29 of the NDPS Act, in Police Station, Kullu, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

The petitioner had also filed a petition (Bail Application No.54 of 2020) before Special Judge II, Kullu, which was dismissed vide order dated 18.4.2020.

I have read the status report(s) and heard counsel for the parties.

The gist of the Prosecution's case is that on 21.8.2019, at around 10:30 p.m., the Police nabbed Rajesh Kumar, who was found in possession of 1.509 Kilograms of Charas. After his arrest, the Police interrogated him and he revealed that he has purchased this Charas from Gian Chand, the present bail petitioner, for a sum of Rs.83,000/-. After this, Police arrested the present petitioner, who further told the Police that he has purchased this Charas from one Fateh Chand for a sum of Rs.75,000/-.

The counsel for the petitioner states that the accused has no criminal history.

The learned counsel for the bail petitioner submits that he has been arraigned as an accused on the basis of confessional statement of the co-accused, which is inadmissible for the reasons that it is hit by Sections 25 & 26 of Indian Evidence Act.

On the contrary, Ld. Additional Advocates General submitted that the quantity involved is commercial, and restrictions of Section 37 of the NDPS Act do not entitle the accused for bail. They further contend that the burden is on the accused to satisfy the twin conditions of Section 37 of NDPS Act, which he has failed to establish.

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.

The contention that confessional statement of the co-accused is hit by Sections 25 & 26 of Indian Evidence Act, is well founded. Ld. Additional Advocates General have failed to point out towards any incriminating evidence against the accused except the allegations of co-accused.

Section 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 3(ix) 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.

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, and keeping in view the nature of allegations, no case for bail is made out in favour of the petitioner.

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.

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 further 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.

Following the decision of this Court in Abhishek Kumar Singh v. State of HP, Cr.MP(M) No. 1017 of 2020, the petitioner 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 either furnish two sureties of a similar amount to the satisfaction of the Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered, or the aforesaid personal bond and fixed deposit(s) for Rs. One Lac only (INR 1,00,000/-), made in favour of Chief Judicial Magistrate, Kullu, District Kullu, H.P., from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., 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. Such a fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made manually, then the original receipt has to be deposited. If made online, then the copy attested by any Advocate has to be filed, and the depositor shall get the online liquidation disabled. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. During the trial's pendency, it shall be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. 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). The Court shall have a lien over the deposits until discharged by substitution, and otherwise up to the expiry of the period mentioned under S. 437-A CrPC, 1973. 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 influence, threaten, browbeat, or pressurize the witnesses and the Police officials.

(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 them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

(g) 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, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.

(h) 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.

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

(j) 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.

(k) 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.

(l) 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.

(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) 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.

(o) The petitioner shall, within thirty days of his release from prison, 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 SHO, 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 SHO/I.O. or any officer of the concerned Police Station. In case of failure by the petitioner to comply with this direction, the SHO/I.O shall initiate methods for filing appropriate petition for cancellation of bail.

(p) 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.

(q) 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.

(r) 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.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the terms described above.

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.

The Court attesting the bonds shall not insist upon the certified copy of this order. Any Advocate for the petitioner may download this order from the website of this Court, and attest it, which shall be sufficient for furnishing bonds and the record. The Court Master/Secretary 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.

In return of the freedom curtailed for breaking the law, the Court believes that the accused shall also reciprocate through desirable behavior.

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