Himachal Pradesh High Court
Puneet Singh vs The State Of Himachal Pradesh on 11 August, 2021
Bench: Anoop Chitkara
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IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
.
ON THE 11TH DAY OF AUGUST, 2021
BEFORE
HON'BLE MR. JUSTICE ANOOP CHITKARA
CRIMINAL MISC. PETITION (MAIN)
No.1559 of 2021
BETWEEN:-
PUNEET SINGH
S/O SH. PRATAP SINGH
R/O VILL MANSAR
TEHSIL AND DISTRICT SOLAN, H.P
.... PETITIONER
(BY SHRI AMIT SINGH CHANDEL, ADVOCATE)
AND
THE STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME),
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2.
..... RESPONDENT
(BY SHRI NAND LAL THAKUR, ADDITIONAL
ADVOCATE GENERAL, SHRI KUNAL THAKUR,
DEPUTY ADVOCATE GENERAL. SHRI RAM
LAL THAKUR AND SHRI SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL FOR THE
RESPONDENT/STATE)
____________________________________________________________________
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This petition coming on for orders this day, Hon'ble
Mr. Justice Anoop Chitkara, delivered the following:
.
JUDGMENT
FIR No. Dated Police Station Sections
89/2021 15.6.2021 Sadar, Solan 21 and 29, NDPS Act
The petitioner, who is in custody under Narcotics
Drugs and Psychotropic Substances Act, 1985 (NDPS Act),
w.e.f. 15.6.2021, for possessing 11.69 grams of heroin
(Deacetyl morphine), and 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 250 grams of heroin (Deacetyl morphine), 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 he is in custody for a considerable time.
2. Earlier, the petitioner had filed the following bail petitions:
(a) Bail Application No.54-S/22 of 2021 before Special
Judge, Solan, which was dismissed on 13.7.2021.
3. The bail petition is silent about criminal history, however,
Mr. Amit Singh Chandel, 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.
4. Briefly, the allegations against the petitioner are that on
.
15.6.2021, the investigator of the aforesaid Police Station was
patrolling in his area. When they were crossing Barog tunnel
on National Highway No.5, then they noticed two persons
coming on foot from tunnel. These persons were not wearing
face masks and on this, the investigator enquired from them.
Then they stated that they had come from Delhi in HRTC bus
and because they were unwell, they got down at Kumarhatti and
now going walking. On this, the investigator asked them to
show their bus tickets and the moment, one of the person took
out the hands from his packet then one packet fell down. On
this, the said person tried to conceal it under his shoe, which
raised suspicion in the mind of the investigator. On inquiry, the
person revealed his name as Puneet Singh, petitioner herein.
After that, the investigator searched the said packet and it
contained heroin, which on weighment was found to be 11.69
grams. After that, the investigator completed the other
procedural requirements under NDPS Act and arrested the
accused. Based on these allegations, the Police registered the
FIR mentioned above.
5. Ld. Counsel for the petitioner contends that incarceration
before the proof of guilt would cause grave injustice to the
petitioner and family.
6. While opposing the bail, the alternative arguments on
behalf of the State are that if this Court is inclined to grant bail,
.
then such a bond must be subject to very stringent conditions.
REASONING:
7. 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.
8. Considering the fact that the petitioner is a first offender
and he is already in custody since 15.6.2021, this court finds
that present is a fit case where judicial discretion to admit the
petitioner on bail is required to be exercised in his favour.
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.
.
10. Without commenting on the case's merits, given the
investigation stage, the period of incarceration already
undergone, and the circumstances peculiar to this case, the
petitioner makes a case for release on bail.
11. 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.
12. 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.
13. The petitioner shall be released on bail in the FIR
mentioned above, subject to his furnishing a personal bond of
Rs. Ten thousand (INR 10,000/-), and shall furnish two
sureties of Rs. Twenty-five thousand (INR 25,000/-) each, 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.
14. In the alternative, the petitioner may furnish a personal
bond of Rs. Ten thousand (INR 10,000/-), and fixed
deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in
favour of Chief Judicial Magistrate of the concerned
district.
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., 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.
15. 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 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.
d) 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.
e) 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.
17. 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, it shall always be permissible to the respondent to apply
for cancellation of this bail. It shall further be open for any
investigating agency to bring it to the notice of the Court seized
of the subsequent application that the accused was earlier
cautioned not to indulge in criminal activities. 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.
18. 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/English.
19. 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.
20. This order does not, in any manner, limit or restrict the
rights of the Police or the investigating agency from further
investigation per law.
21. 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.
22. In return for the protection from incarceration, the Court
.
believes that the accused shall also reciprocate through
desirable behavior.
23. There would be no need for a certified copy of this order
for furnishing bonds. Any Advocate for the petitioner can
download this order along with the case status 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.
In the facts and circumstances peculiar to this case, the
petition is allowed in the terms mentioned above.
(Anoop Chitkara)
Judge
August 11, 2021 (Mamta)
