Pavit vs State Of H.P
2021 Latest Caselaw 809 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 47 of 2021 Reserved on: 27.01.2021.

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Date of Decision: 04.02.2021.

    Pavit                                                        ...Petitioner.





                                Versus

    State of H.P.                                              ...Respondent.

    Coram:

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

Whether approved for reporting?1NO ____________________________________________________________

For the petitioner: Mr. N.S. Chandel, Senior Advocate,

with Mr. Vinod K. Gupta, Advocate.

    For the respondent:         Ms.Seema Sharma, Deputy Advocate
                                General with Mr. Shriyek Sharda, Senior
                                Assistant Advocate General and Mr.


                                Manoj     Bagga,   Assistant    Advocate
                                General.




                         THROUGH VIDEO CONFERENCE





        FIR     Dated         Police Station                     Sections
        No.
        185     03.12.2020    Damtal, District Kangra, 21, 25-61-85 of





                              H.P.                     NDPS Act

    Anoop Chitkara, Judge.

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

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

regular bail, on the ground that they are not connected with the

contraband.

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2. 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.

3. 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

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

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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

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NDPS Act and Cr.PC and arrested the accused. Based on these

allegations, the Police registered the FIR mentioned above.

5. 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.

6. 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.

7. 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

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conditions of S. 37 of NDPS Act.

8. 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.

9. 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.

10. 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

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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.

11. 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 ("Charas") 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."

12. 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.

13. The possibility of the accused influencing the

investigation, tampering with evidence, intimidating witnesses, and

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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.

14. 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.

15. 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.

16. 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

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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.

18. 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.," r

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.

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19. 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,

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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.

20. 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

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remain in force throughout the trial and after that in terms of Section

437-A of the CrPC.

21. 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.

22. 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.

23. This order does not, in any manner, limit or restrict the

rights of the Police or the investigating agency from further

investigation per law.

24. 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.

25. In return for the protection from incarceration, the Court

believes that the accused shall also reciprocate through desirable

behavior.

26. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can

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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.

Anoop Chitkara, Vacation Judge.

February 4, 2021

R.Atal