Bachni Devi vs State Of H.P
2021 Latest Caselaw 1147 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 209 of 2021 Reserved on: 22.2.2021

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Date of Decision: 22.2.2021.

    Bachni Devi                                                           ...Petitioner.

                                  Versus





    State of H.P.                                                        ...Respondent.

    Coram:





    The Hon'ble Mr. Justice Anoop Chitkara, Judge.

    Whether approved for reporting?1 NO

    For the petitioner:    Mr. Pawan Gautam, Advocate.

For the respondent: Mr. Nand Lal Thakur, Addl. Advocate General with Mr.

Ram Lal Thakur, Asstt. A.G and Mr. Rajat Chauhan, Law Officer, for the respondent/State.

                           THROUGH VIDEO CONFERENCE


        FIR No. Dated           Police Station             Sections




        177/2020 22.11.2020     Damtal, Distt. Kangra      21-61-85, NDPS Act





    Anoop Chitkara, Judge.

A woman, who is a habitual offender, under Narcotics Drugs and Psychotropic

Substances Act, 1985 (NDPS Act), is once again in prison for last three months, for jointly possessing 103.73 grams of diacetyl Morphine (Heroine), 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 Diacetyl 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.

Whether reporters of Local Papers may be allowed to see the judgment?

2. Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 28.12.2020, Ld. Special Judge-

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II, Kangra at Dharamshala, HP, dismissed the petition because the accused is a

habitual offender.

3. Para 4 of the bail petition and status report mentions the following criminal

history:

a) FIR No.357/16 dated 10.11.2016 under Sections 20, 21-61-85, NDPS Act

b) FIR No.205/2017 dated 30.6.2017 under Sections 21-61-85, NDPS Act,

P.S. Nupur

c) FIR No.27/2019 dated 4.5.2019 under Sections 21-61-85, NDPS Act, P.S. Damtal

4. Briefly, the allegations against the petitioner are that on 22.11.2020, the

investigator accompanied with police officials was patrolling in the area of Police Station, Damtal to maintain law and order and to detect crime. At 4.00 p.m. he received a secret information that Lovejit Kumar (A-1), his wife Anu Bala (A-2), his

mother Bachni (A-3, petitioner herein) and one Karan Kumar (A-4) are selling heroin from their house and in case the house and these persons are searched immediately,

then the police can recover huge heroin. The investigator believed the information to be reliable and then they, after complying with the provisions of Section 42 of NDPS

Act, proceeded towards the said premises. After associating two local persons as witnesses, the investigator reached the house of Lovejit Kumar. On noticing the

police officials, Karan Kumar and Lovejit Kumar tried to run away but Lovejit Kumar fell and suffered injuries on his leg, After that, the police conducted the search of the house and recovered brown coloured substance apart from cash. When weighed on electronic scale, the substance, which prima facie appears to be heroin, measured 103.73 grams. When tested from Drugs Detection Kit, it was found to be heroin. Subsequently, the police arrested all the four persons mentioned above. The laboratory also tested the substance as diacetyl morphine (heroin). 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. On the contrary, the contention on behalf of the State is that the accused is a proven habitual offender, and given his past conduct; he is likely to repeat the

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offence. He further insists that if this Court is inclined to grant bail, then such a bond

must be subject to very stringent conditions.

REASONING:

7. The recovery was made from the house allegedly inhabited by four persons. Simple because the recovery was from a dressing table, it would not lead to an automatic inference that it were the ladies, who were using such dressing table.

However, even the case of the prosecution itself is of joint possession and not of individual possession. Given the fact that the quantity is not commercial, further incarceration of the accused is not justified.

8. 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.

10. The petitioner is a woman and even as per the case of the prosection, on noticing the police officials, it were the other two accused persons (witnesses A-1 and A-4), who were tried to run away and there is no such allegation against the petitioner. Another factor for ignoring the criminal history at this stage is that the petitioner is already in jail for four months.

11. 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

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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.

12. 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.

13. 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.

14. 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.

15. 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.,"

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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.

16. 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

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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.

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.

17. 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.

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18. 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.

19. 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.

20. 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.

21. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

22. 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.

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

24. 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.

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The petition stands allowed in the terms mentioned above.

                                                                          (Anoop Chitkara)





                                                                              Judge


    22.2.2021 (mamta)




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