Jagdish Chand vs State Of Himachal Pradesh

Anoop Chitkara, J

An under-trial prisoner, who is in custody since 1.7.2020, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for possessing 198 grams of Charas (Diacetylmorphine).

The police arrested the petitioner, in FIR No. 53 of 2020, dated 1.7.2020, registered under Sections 20-61-85 of the NDPS Act, in Police Station Darlaghat, District Solan, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

Earlier, the petitioner filed a petition under Section 439 CrPC before, Special Judge-III, Solan, District Solan, HP. However, vide order dated 9.7.2020, the Court dismissed the petition, because in the opinion of the Court, the petitioner is involved in the trade of contraband and if he is released on bail, he might again indulge in the similar transactions and also tamper with the prosecution evidence.

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

FACTS:

The gist of the facts apposite to decide this petition would suffice that on 1.7.2020, when the Police party was conducting traffic checking on link road at Mangoo within the jurisdiction of Darlaghat Police Station, then at 3:30 p.m., day time, the Police party noticed one person walking on foot who was carrying a bag in his hand. On seeking the Police party, the said person turned back and started walking whimsically. It raised suspicion in the mind of the Police and they inquired from him and he revealed his name as Jagdish Chand, petitioner herein. After that, the Police associated independent witnesses and checked the bag, which contained black coloured substance. On the basis of experience and smelling the same, the said substance was found to be Charas. On weighing the same, it was found to be 198 grams. Consequently, the accused was arrested. Thereafter, the other procedural formalities were completed and the aforesaid F.I.R. came to be registered.

PREVIOUS CRIMINAL HISTORY

The counsel for the petitioner states that the accused has no criminal history. He further submits that conditions may be put that in case the petitioner repeats the offence, this bail may be canceled.

SUBMISSIONS:

The learned counsel for the bail petitioner submits that the allegations are false and concocted.

On the contrary, Mr. Nand Lal Thakur, Additional Advocate General, contends that the investigating officer has collected sufficient prima facie evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

ANALYSIS AND REASONING:

Pre-trial incarceration needs justification depending upon the heinous nature of the offence, 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 the victim(s) and 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 offence, also mention the minimum and maximum sentence, depending upon the quantity of the substance. When the substance falls under commercial quantity statute mandates minimum sentence of ten years of imprisonment and a minimum fine of INR One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.

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. 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.

In the present case, the quantity of substance seized is less than the commercial quantity. Therefore, the bail application stands on different parameters and is similar to bail petitions under regular statutes.

In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, a Constitutional Bench of Supreme Court holds in Para 30, as follows:

"It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

In State of Rajasthan, Jaipur v. Balchand , AIR 1977 SC 2447, Supreme Court holds:

"2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative.

It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime."

In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, Supreme Court in Para 16, holds:

"The delicate light of the law favours release unless countered by the negative criteria necessitating that course."

In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, a three-member bench of Supreme Court holds:

"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so."

In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, Supreme Court holds as under:

"1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.

However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions 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 nature of the offence does not restrict bail. The possibility of his influencing the course of the investigation, or tampering with evidence (including intimidating witnesses), the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions.

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 trial is neither warranted nor will achieve any significant purpose.

Thus, without commenting on the merits of the evidence collected so far, in the cumulative effect of all the factors mentioned herein-before, the petitioner makes out a case for bail.

The address of the petitioner is, Village and Post Office, Mangoo, Tehsil Arki, District Solan, H.P., therefore, presence can be secured.

To ensure that he does not get an opportunity to commit an offence while on bail, this Court is putting the following stringent conditions and this bail shall be subject to the strict terms.

Given the above reasoning, the Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 50,000/, (INR Fifty thousand only), to the satisfaction of the Trial Court. The petitioner shall also furnish one surety for INR 5000 (INR Five thousand only), to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court, which is exercising jurisdiction over the concerned Police Station where FIR is registered. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:

(a) Once the trial begins, the petitioner 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.

(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 cooperate with the investigation at all further stages as may be required, and, in the event, there is any failure on the part of the petitioner to so cooperate, it will be open for the prosecution to seek cancellation of the bail granted by the present order.

(f) The petitioner shall not influence, threaten, browbeat, or pressurize the witnesses and the Police officials.

(g) 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.

(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 through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court.

(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) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, then it shall be open for the State to apply for cancellation of this bail order.

(p) 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.

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.

The learned counsel representing the accused as well as 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.

The petitioner undertakes to comply with all the directions given in this order. Furnishing of bail bonds by the petitioner is the acceptance of all such conditions.

The officer attesting the personal bonds shall ascertain the identity of the bail-petitioner, through these documents, and mention details on the reverse page of the personal bonds.

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

The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner.

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 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 bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master 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 for 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.