Sonam Ram vs State Of H.P
2021 Latest Caselaw 812 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 1980 of 2020 Reserved on : 29th January, 2021.

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Date of Decision:04th February, 2021.

    Sonam Ram                                                               ...Petitioner.





                                    Versus

    State of H.P.                                                          ...Respondent.

    Coram:

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

Whether approved for reporting?1 NO

For the petitioner : Mr. Sanjeev Kumar Suri, Advocate.

For the respondent : Mr. Sudhir Bhatnagar, Addl. A.G. with Ms. Seema Sharma, Mr. Narinder Singh Thakur & Mr. Kamal Kant, Dy. A.Gs. and Mr. Manoj Bagga, Asstt. A.G.

                             THROUGH VIDEO CONFERENCE

        FIR No.     Dated          Police Station                  Sections
        228/2020    20.08.2020     Kullu District Kullu            20, 25, 29 NDPS Act




    Anoop Chitkara, Vacation Judge.

The petitioner, who apprehending his arrest for selling commercial quantity of charas to the main accused, has come up before this Court under Section 438 CrPC,

seeking anticipatory bail, on the grounds that he has been falsely implicated.

2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 &

15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Court.

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

3. In Para 5 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 19.8.2020, the police

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officials were conducting patrolling in official vehicle to detect crime. At 8.25 p.m., onwards they started checking vehicles at a place known as Kias in Kullu. At 9.00 p.m. one car came from Manali side. The police officials signaled to stop. On

inspection, apart from the driver, two persons were sitting on the back seat. The police officials apprised them that they would like to conduct search of their vehicle. On this, all the three persons became perplexed. Their reaction raised reasonable

apprehension in the mind of the investigator that they are concealing something. Subsequently, the police associated local persons as independent witnesses and in their presence conducted search of the Car. The driver revealed his name as Kali

Dass (A-3). The person sitting on the back seat revealed their names as Budh Ram

(A-1) and Govind (A-2). On search of the vehicle, Govind had kept a bag between his legs. On checking the same, one polythene packet wwas found containing black coloured substance in the shape of ball, which prima facie look like charas. On

weighing the same, it measured 1 kilogram and 596 grams. The laboratory also tested it positive for Charas. Thereafter the police conducted other procedural requirements under NDPS Act and Cr.PC and arrested the accused. During

interrogation of the accused they revealed that they had purchased this Charas from accused Sonam, petitioner herein for a sum of rupees Two Lacs. The Police detected

call conversations between Kali Dass (A-3 ) and Sonam on 18.8.2020 i.e. two days prior to recovery. Subsequently, the investigator proceeded to arrest Sonam, but he

approached this Court and vide order dated 6.11.2020, a coordinate Bench of this Court granted him anticipatory bail.

5. Mr. Sanjeev Suri, learned Counsel for the petitioner submits 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; Stinder 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 contends that the Police have collected sufficient evidence by tracing frequent calls made by the bail petitioner and the main accused, which prima facie points out towards his involvement. He also contended

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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 petition is supported by affidavit of Sonam. Thus he is bound by these admissions. It is useful to extract the relevant portion of the said pleadings:

3. That the petitioner belong to very respected family having deep roots in the society and above mentioned Budh Ram beaten the petitioner near bus r stand on 10.8.2020, against which petitioner filed

complaint before the Gram Panchayat Jana. It is respectfully submitted that Budh Ram work with Kali Dass and another accused also work with Kali

Dass. It is further submitted that out of enmity and to harass the petitioner above mentioned accused falsely named the petitioner in above mentioned FIR

and the petitioner is innocent person have not

concern with any of the offence. It is pertinent to mention here that Gram Panchayat also send the summon to Budh Ram to appear on 14.8.2020

before Panchayat but he did not appear though after came to know about the complaint above named Kali Dass called from the Budh Ram phone for three four time to the petitioner and threatened the petitioner to withdraw his complaint otherwise he will face the dire consequences. It is respectfully submitted that out of this enmity name of the petitioner has been falsely given in the above mentioned offence. Copy of complaint is attached

herewith as Annexure P-1 and the copy of the summoning order is attached herewith as Annexure P-2 (Colly). It is further submitted that the

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petitioner filed the bail application before the

Hon'ble High Court and the same was withdrawn with the liberty to file the fresh and the petitioner

filed the Cr.MMO No.340 before this Hon'ble High Court in which the Hon'ble High Court issued the notice and the application filed under Section 438 of the Cr. P.C. has been withdrawn with liberty to file

fresh. Computer generated copy of the order dated r 5.11.2020 is attached herewith as Annexure P-3."

8. Another submissions on behalf of the petitioner is that he is the first offender

whereas the others are habitual offender. In third submissions, he has mentioned his Bank account number and had declared that he has only this account. The transaction can be verified in the investigation. The petitioner has placed reliance

upon Annexure P-1, which is a complaint dated 10.8.2020, made by him to Gram Panchayat. In this complaint Sonam mentioned that Budh Ram (A-1) had quarreled

with him on 10.8.2020 and at that time he had threatened that he would implicate him in a false case. The perusal of Annexure P-1 reveals that it is dated 10.8.2020.

He has also placed reliance on Annexure P-2, dated 12.8.2020, which is proceedings of Gram Panchayat, in which he was called before the Panchayat on 14.8.2020 in

relation to complaint dated 10.8.2020.

9. The petitioner has stated on affidavit that on 10.8.2020, Budh Ram (A-1) had given beatings to him. His further admission is that Budh Ram (A-1) and Govind (A-2) work with Kali Dass. A perusal of Annexure P-1 reveals that it is not antedated, but was made on 10.8.2020. The proceedings of the Panchayat are also corroborating the said fact. As per Annexure P-1, the petitioner had complained his quarrel with Budh Ram (A-1) to the Pradhan. A perusal of Annexure P-2, reveals that Panchayat had taken action on 12.8.2020 and also convened a meeting 14.8.2020. The proceedings are signed by Pradhan Shyam Lal, Up-Pradhan Roshan Lal, Ward Member Pyare Ram and Ward Member Suman. Proceedings dated

14.9.2020, reveal that Budh Ram did not appear before the Panchayat. Said Budh Ram was arrested on 20.8.2020 and the status report is silent about the fact that whom of the three had named Sonam. Even otherwise, based on the allegations of

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the petitioner, all the three accused persons were part of the Mafia, whereas the

petitioner has claimed that he has no criminal history and has also mentioned his account number for verification. Conduct of the petitioner satisfy the first condition

of Section 37 of NDPS Act. To take care of second condition, the Court would be imposing stringent conditions.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. Given above, in the event of arrest, the petitioner shall be released on bail in

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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 Investigator. Before accepting the sureties, the Attesting

Officer 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.

16. 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 Kullu, H.P.,"

a) The arresting Officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.

b) 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.

c) Such a fixed deposit need not necessarily be made from the account of

the petitioner and need not be a single fixed deposit.

d) 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.

e) 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.

f) 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.

g) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

h) 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.

i) 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

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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.

17. 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.

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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.

18. 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.

19. 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.

20. 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 Government(s) might incur to produce him before such

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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 shall entitle the trial Court to order the transfer of

money from the petitioner's bank account(s). 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 that voyage was not for any other purpose/function what so ever.

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. 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.

Petition allowed.

(Anoop Chitkara), Vacation Judge.

February 04, 2021 (ps).