Heera Devi vs State Of H.P

Anoop Chitkara, J

The petitioner, who is in prison w.e.f. 21.8.2020, for selling 700 grams of charas, has now come up before this Court under Section 439 of CrPC,

seeking bail, on the grounds that the quantity of contraband allegedly seized is intermediate quantity and does not restrict bail, because the quantity

greater than one kilogram of charas, falls in the category of the commercial quantity; hence the restrictions for bail imposed in S. 37 of NDPS Act, do

not apply, and in the present case she is in custody for a considerable time.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Special Judge. However, vide order dated 8.10.2020,

Learned Special Judge, Bilaspur, HP, dismissed the petition.

In Para 14 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that on the intervening night of 24/25th July, 2020, the Police party was on patrolling duty in a

private vehicle in their jurisdiction. At around 3.30 in the night, the police official noticed one i10 car bearing No.PB-22U-0324, parked on the side of

the road. On this, the police officials reached near the vehicle and noticed, apart from the driver, three more persons sitting in the car. On seeing the

police officials those persons became perplexed. The persons, who were sitting on the back seats opened their doors and ran towards the forests. The

driver and the person sitting on the front seat also opened their doors and tried to run away, but the police officials were able to nab them. All this

raised suspicion and the police officials inquired from them the reasons of their sitting in a vehicle in the midnight and why they tried to run away.

Subsequently, the investigator decided to conduct their search and also of the vehicle and as such sent one of the officials to bring independent

witnesses, however, due to midnight, he could not get any independent witness. After that the person sitting on the driving seat revealed his name as

Shivam and the person sitting on the front seat told his name as Ankit Sharma. On search of the dicky of the car, below the stepney, one carry bag

was recovered and on opening the same, it had a polythene packet, which when opened had charas in it. The contraband, when weighed on electronic

scale measured 1.642 kgs. The Police official re-packed the said charas and conducted procedural requirements under NDPS Act and Cr.PC.

Subsequently, the police arrested Shivam and Ankit. During the investigation, the police came to know about the absconders as Rakesh Kumar and

Akshay Sharma and arrested them on 28th July, 2020. On 30th July, 2020, Rakesh Kumar allegedly made a disclosure statement to the effect that on

23rd July, 2020, he had purchased one kilogram charas and on 24th July, 2020, he along with Shivam Monga, Akshay Kumar and Ankit Sharma

purchased 700 grams of Charas. During further investigation, it came to know that these persons had purchased one kilogram of charas from Hem

Raj at Faujal, District Kullu. The investigation revealed that the accused also purchased 700 grams of charas from Hira Devi on 31st July, 2020. The

police arrested these two persons. The laboratory tested the contraband as charas. The Police also obtained CDR of phone numbers of the accused

and it was found that they had called interse. The Police also traced the money trail leading to purchase of charas. Based on these allegations, the

Police registered the FIR mentioned above.

Mr. Rajiv Jiwan, learned Senior Advocate assisted by Mr. Ajit Sharma, Advocate argued that the petitioner has been arrested pursuant to the

disclosure statement recorded under Section 27 of the Indian Evidence Act of one of the co-accused. He states that as per the said disclosure

statement, the charas sold by the petitioner was 700 grams, which is not a commercial quantity, as such she is entitled to bail.

To the contrary, learned Additional Advocate General argued that if this Court is inclined to grant bail, such a bond must be subject to very stringent

conditions.

REASONING:

Petitioner has been arrested on the basis of the disclosure statement of one of the co-accused. The investigator recorded such disclosure statement

under Section 27 of the Indian Evidence Act, which did not lead to discovery of any fact, but only to pointing of the place from where the accused had

purchased the charas. Furthermore, had that statement been legally admissible, still as per the said statement, the petitioner had sold 700 grams of

charas. The schedule of NDPS Act clarifies that the charas greater than one kilogram is the commercial quantity.

In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon’ble Supreme Court holds that in intermediate quantity,

the rigors of the provisions of Section 37 may not be justified. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 15), this Court observed

that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions

under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is

normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can

be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

Given the above reasoning, coupled with the peculiar facts and circumstances of the case, 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.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that

any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to

switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR

25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station

conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate must satisfy

that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the

Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made

in favour of ""Chief Judicial Magistrate, District Bilaspur, 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, City Bank, 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 vice-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. 437-A CrPC,

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

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay

the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) 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. She shall keep the phone location/GPS always on the “ON†mode. Before replacing her mobile

phone, she shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating

officer asks her to share her location, then she shall immediately do so. The petitioner shall neither clear the location history nor format her phone

without permission of the concerned SHO/I.O. She shall also not clear the WhatsApp chats and calls without producing the phone before the

concerned SHO/I.O.

d) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police

officials, 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.

e) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the

investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall

not be subjected to third-degree, indecent language, inhuman treatment, etc.

f) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants 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]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to

achieve the purpose.

The petitioner shall surrender all firearms, ammunition, 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.

During the trial's pendency, if the petitioner commits any offence under NDPS Act, even if it involves small quantity, or any offence

other than NDPS Act, where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, the

State shall file an appropriate application before this Court, seeking cancellation of this bail. Otherwise, the bail bonds shall continue to

remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.

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 Government(s) 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

shall entitle the trial Court to order the transfer of money from the petitioner's bank account(s). However, this recovery is subject to the condition that

the expenditure incurred must be spent to trace the petitioner alone, and it relates to the exercise undertaken solely to arrest the petitioner in that FIR,

and that voyage was not for any other purpose/function what so ever.

Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

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 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 condition.

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

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order from

the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an

officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.