Sunny Kumar vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, who is in custody since 28th September, 2020, has come up before this Court under Section 439 of the Code of Criminal Procedure,

1973 (CrPC), seeking bail, under Section 21 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for possessing 6.69 grams of

heroin (Diacetylmorphine).

The police arrested the petitioner on 28.9.2020, in FIR No.152 of 2020, dated 28.09.2019, registered under Sections 21-61-85 of the NDPS Act, in

Police Station, Damtal, District Kangra, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

Earlier, the petitioner had filed a petition under Section 439 Cr.PC, before Special Judge-II, Kangra at Dharamshala. However, vide order dated

10.11.2020, learned Special Judge-II, Kangra at Dharamshala, dismissed the petition.

The petitioner's criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction,

the sentence imposed was more than three years: The status report reveals the following criminal history:

i) Case No.44/18, dated 17.2.2018, under Section 20, 21-61-85, NDPS Act, Police Station Nurpur; and

ii) Case No.137/19, dated 25.10.2019, under Section 21-61-85, NDPS Act, Police Station, Damtal, District Kangra, H.P.

Briefly, the allegations against the petitioner are that on 28th September, 2020, the inspector/SHO of the Police Station Damtal, Distrcit Kangra was

on patrolling duty along with police personnel in a private vehicle. At around 4.20 p.m., when the police officials reached at a place known as Indora

Mod stopped the vehicle and stood by the side of the road, then one Bolero vehicle driven by one Abhishek stopped and he started talking to the SHO.

In the meantime, the police official noticed one person, who was crossing through this road. On seeing the police officials, he begin heeding towards

the Groves. This rose suspicion in the mind of the SHO and he directed Head Constable Inderjeet to call that person. On getting closer, he recognized

the person as the petitioner herein because there was a case under NDPS Act already registered against him. Then the police official asked him to

stop, but he started fleeing away. Upon this they chased and nabbed him. In the meanwhile, the petitioner threw something on the ground. On search,

it was a rapper of Tobacco and opening of it, it had a Poly zip pouch, which contained brown coloured substance. Based upon the experience of the

police officials, it appeared to be Heroin/diacetylmorphine. On this the Police called drug detection kit and other investigating kits from the Police

Station. The substance, on weighment on electronic scale, measured to be 6.69 grams and tested positive for Heroin. After that the police completed

the investigation and conducted the procedural requirement under the NDPS ACT and Cr.PC.

Ms. Anjali Soni Verma, learned counsel submits that the petitioner is in custody since 28th September, 2020 and it has been more than two months

since when he is in jail for possessing the substance, which is slightly above small quantity. She further contends that incarceration before the proof of

guilt would cause grave injustice to the petitioner and his family.

Mr. Anil Jaswal, learned Additional Advocate General submitted that the petitioner is a habitual offender.

ANALYSIS AND REASONING :

In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the bail

decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh

Ranjan @ Pappu Yadav, 2005 (2) SCC 42 (Para 18) a three-member bench of Supreme Court held that the persons accused of non-bailable offences

are entitled to bail, if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence

of a prima facie case, the Court records reasons for its satisfaction for the need to release such persons on bail, in the given fact situations. The

rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing

requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447 ,(Para 2 & 3), Supreme Court noticeably

illustrated that 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. 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 ,(Para 16), Supreme Court in Para 16, held that the delicate light of the law favours

release unless countered by the negative criteria necessitating that course. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22 ,(Para 6),

Supreme Court held that 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.

Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a

crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, 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. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in

the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.

The quantity of substance involved in this case is closer to the smaller quantity and does not restrict bail. The incarceration of the accused during

the period of trial is neither warranted, nor justified, or going to achieve any significant purpose. 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.

The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of

fleeing justice, can be taken care of by imposing elaborative conditions 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, 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 Manish Lal Shrivastava v. State of Himachal Pradesh, Cr.MP(M) No. 1734 of 2020, decided on 1st Dec

2020, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One ten thousand (INR

10,000/-), and shall either furnish two sureties of a similar amount, both of whom, in case of default from putting in an appearance, can produce the

accused before the Court to the satisfaction of the Judicial Magistrate, Baijnath/ Chief Judicial Magistrate, District Kangra, HP/ or any other Judicial

magistrate of District Kangra, HP or the aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of

“Chief Judicial Magistrate, District Kangra, H.P.â€, 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. The arresting officer shall give a time of ten working days to enable the accused to prepare a fixed deposit. Such a

fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made on paper, then the original receipt shall

be handed over to the arresting officer. 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. The petitioner or his Advocate shall inform at the earliest, either by e-mail or by

post/courier, the concerned branch of the bank about the fixed deposit, whether made on paper or in any other mode, along with its number as well as

FIR number, that it has been tendered as surety. After that he shall hand over such proof along with endorsement to the Investigator. 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. 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 Officer shall have a lien over the deposits until discharged by substitution, and in

case any Court takes cognizance then such Court, upon which the investigator shall hand over the deposit to such Court, which shall have a lien over it

up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or as the case may be.

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

WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).

c) 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.

d) The petitioner shall cooperate with the investigation at all further stages as may be required, and in the event of failure to do so, it will be open for

the prosecution to seek cancellation of the bail granted by the present order.

e) 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.

f) 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].

g) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.

h) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.

i) 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.

j) 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 to achieve the purpose.

k) 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 alone 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.

l) The petitioner shall immediately intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts,

and not later than 30 days from such modification, to the Police Station of this FIR, and also to the concerned Court.

m) 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.

n) 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.

o) 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.

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

then the State may/shall move an appropriate application for cancellation of this bail.

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.

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.

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

The petition stands allowed in the terms mentioned above.

Copy Dasti.