Kajal vs State Of H.P

Anoop Chitkara, J

A woman aged 35 years, who is again in judicial custody since 7th October, 2020, for possessing 51.51 grams of Heroin (Diacetylmorphine) has

come up before this Court under Section 439 of CrPC, seeking bail, on the grounds that the quantity is intermediate quantity and she being a female

needs to take care of her household and also that she is in custody for sufficient period in proportion to the weight of the contraband.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 19.11.2020,

Learned Special Judge-II, Kangra at Dharamshala HP, dismissed the petition.

The bail petition is silent about criminal history, however, Mr. Gobind Korla learned counsel for the bail petitioner states on instructions that the

petitioner had one similar case. The status report mentions the following criminal history:

a) FIR No.191/2016 dated 15.8.2016 registered at Police Station Indora under Section 21-61-85 of NDPS Act.

Briefly, the allegations against the petitioner are that on the intervening night of 7th October, 2020, the Police officials were on patrolling duty in their

jurisdiction for detection of crime and psychotropic substances. At around 3.20 p.m., when the police official reached at Indora turn, they noticed one

lady walking towards P Marka Factory. On noticing the Police vehicle, she suddenly turned back and threw away one packet, which she was carrying

in her hand. After that by taking long steps, she started returning. This raised suspicion and the women police officials nabbed the lady. After that the

investigator associated independent witnesses and in their presence lifted the packet thrown by the woman. On opening the same it had a brown

coloured substance. The investigator tested it on drug detection kit and it tested positive for Heroin and when weighed on electronic scale it measured

51.51 grams. The Police official re-packed the same and conducted other procedural requirements under NDPS Act and Cr.PC.

Mr. Gobind Korla, learned Counsel for the petitioner argued that incarceration before the proof of guilt would cause grave injustice to the petitioner

and family. He further submits that a final opportunity be given to the petitioner to mend her ways.

While opposing the bail, learned Additional Advocate General argued that the accused is a proven habitual offender, and given her past conduct;

she is likely to repeat the offence. He further insists that if this Court is inclined to grant bail, then such a bond must be subject to very stringent

conditions.

The petitioner is indulged in the criminal activities and a case is registered against her in the year 2016. Given the quantity of substance and the fact

that the petitioner is already in jail for about four months, coupled with the fact that she being a lady has to take care of household, last opportunity can

be afforded to her.

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.

9.

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.

In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that

in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the

prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was

convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused.

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. 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.

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 Kangra, 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 her 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. He 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 her 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.