Pavit vs State Of H.P

Anoop Chitkara, J

A young boy of 20 years, who alongwith three more persons have been arraigned as accused with the main accused, has come up before this Court

under Section 439 of CrPC, seeking regular bail, on the ground that they are not connected with the contraband.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 31.12.2020, Ld.

Special Judge-II, Kangra at Dharamshala, dismissed the petition because it does not appear to be a case where it could be reasonably believed that

the accused was not guilty of the alleged offence. The serious nature of accusation against the accused is relevant factor while considering her

release on bail. Further taking into consideration the gravity of the offence, quantity of the recovered contraband and the impact of the offence to the

society, the story of the prosecution cannot be disbelieved.

Ld. Counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven

years and more, or when on conviction, the sentence imposed was more than three years. The status report also does not mention any criminal past of

the accused.

Briefly, the allegations against the petitioner are that on 3.12.2020, at 7:30 pm, SHO, Police Station Damtal received a secret information that

Dhharminder alias Govinda, has kept psychotropic substances in his vehicle Creta, which is parked in village Takoli in the compound of Kashmiri Lal.

Since the informer was very reliable, as such, SHO informed Dy.SP and associated witnesses and proceeded towards the spot. At 7:50, they reached

the house, where main gate was locked. ASP also joined the raiding party. On finding the house locked, ASP called SDM and Tehsildar at the spot.

They knocked at the door and Rekha Devi (A-1) opened the same. In the house Anamika (A-3), daughter of Gulshan Kumar, Sharishta Devi (A-4)

and the present petitioner were also present. Police officials apprised them about their intention to conduct search of their house. After that they

reached in the compound and noticed a Creta car bearing No.HP-38E-6061 parked. On inquiry, Rekha Devi disclosed that this car belongs to

Dharminder alias Govinda son of Shri Surjan village Channi, and he parks it in this place and also said that he had parked this vehicle here about 15

days ago and they do not know where is he. After that, they inquired about the keys of the vehicle, but they said that they do not have keys.

Subsequently, the police conducted thorough search of the house, but neither they recovered any contraband nor keys of the vehicle. Since the

information was very reliable and even previously Dharaminder was nabbed for possessing heroin and capsules, as such, the investigator decided to

break open the window. After breaking open the windowpane, they opened the door and in the dashboard, they recovered a plastic pouch, which had

brown coloured substance. On opening the same, it had heroin. On testing from drug detection kit, it tested positive for the same and when it weighed,

it measured 302 grams, which is a commercial quantity. Police also recovered RC of the vehicle No.HP38E-6061, in which, name of the owner is

Dharminder alias Govinda son of Surjan Singh, VPO Channi, Tehsil Indora, District Kangra. After that police conducted the procedural requirement of

NDPS Act and Cr.PC and arrested the accused. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that the evidence collected against the petitioner is legally inadmissible. He also places reliance upon the

decisions of this Court in Budhi Singh v. State of H.P., CrMPM 595 of 2020; Rehmat Ali v. State of Himachal Pradesh, Cr.MP(M) No.203 of 2019,

Naveen Bura v. State of HP, 2018 Law Suit (HP) 478, Thakur Dass v. State of H.P., CrMPM 167 of 2010; Stynder Singh v. State of Himachal

Pradesh, 2010(1) SimLC 490, and Nisar Ahmed Thakkar v. State of H.P., CrMPM 672 of 2008.

Learned Deputy Advocate General submits that the Police have collected sufficient evidence against the accused, which prima facie points out

towards his/her involvement. she also contended that the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act do not entitle the

accused for bail. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must

be subject to very stringent conditions.

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 S. 25 & 26 of Indian Evidence Act, is well founded. Ld. Deputy Advocates

General have failed to point out towards any incriminating evidence against the accused except the allegations of co-accused.

S. 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.

As per the case of the prosecution, despite thorough search of the house, they do not recover the keys of the vehicle. It is also the case of the

prosecution that in the absence of keys of vehicle No. HP38E-6061, they had to break open the windowpane and then opened the door, which led to

recovery of commercial quantity of heroin. The investigator also recovered RC of the vehicle, wherein, the vehicle was registered in the name of

Dharminder Kumar son of Surjan, R/o VPO Channi, Tehsil Indora, District Kangra, HP. Thus, there is no legal evidence to connect the petitioner with

such creta vehicle. The explanation offered by the petitioner to the investigator was that Dharminder alias Govinda used to park his creta in their

house. Very fact that after parking the vehicle, Dharminder alias Govinda did not leave the keys of the vehicle , which shows that he was aware of

the contraband and he also wanted the contraband to remain safe from other persons, including the bail petitioner. Thus, prima facie, there is no

evidence to connect the petitioner with the alleged substance and the petitioner has crossed the rigors of Section 37 of the Act and made out a case of

bail.

Learned counsel for the petitioner has placed reliance on the judgment, vide which the Supreme Court had released one of the accused Amit

Kumar Moni (A-2), who was sitting on the front left seat and the charas was recovered from front left window i.e. adjacent to him. The order of

Hon’ble Supreme Court, passed in Criminal appeal No.668 of 2020, reads as follows:

“Leave granted.

This appeal challenges the order dated 10.07.2020 passed by the High Court of Himachal Pradesh, Shimla in Crl. M.P. (M) No.1107 of 2020.

The appellant (accused no.2) is facing prosecution in Case No.135 of 2018 on the file of the Special Judge-II, District Mandi, Himachal Pradesh in

connection with crime registered pursuant to FIR No.62 dated 23.02.2018 with Police Station Sadar Mandi, District Mandi, Himachal Pradesh, for the

offences punishable under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

The application preferred by the appellant for release on bail under Section 439 of the Code of Criminal Procedure, 1973 (‘the Code’, for short)

having been rejected by the High Court, the appellant has preferred this appeal.

According to the case of the prosecution, in a vehicle occupied by five persons including the appellant, contraband material (“Charasâ€) weighing

3285 grams was found concealed behind the panel of the front left side door of the vehicle.

It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness was

examined in February 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that

the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody.

Considering the facts and circumstances on record, in our view, the appellant is entitled to the benefit under Section 439 of the Code. We order

accordingly.

The appellant shall be produced before the Trial Court within three days from today and the Trial Court shall release him on bail, subject to such

conditions as the Trial Court may deem appropriate to impose to ensure his presence and participation in the pending trial.

We may also observe that since seven witnesses have already been examined, the Trial Court shall conclude the trial as early as possible. With the

aforesaid observations, the appeal is allowed.â€​

In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail. 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, petitioner has made out a case for grant of 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 theCourt, 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 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 deposit his passport, if not already seized by the Police.

d) 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 Investigating officer

asks 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. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned

SHO/I.O.

e) 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.

f) 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.

g) 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.

h) 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.

During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates

any condition as stipulated in this order, the State may move 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.

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.