Kans Raj vs State Of H.P
2021 Latest Caselaw 816 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.157 of 2021

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                                               Reserved on: 29.01.2021





                                               Date of Decision: Feb 4, 2021

    Kans Raj                                                     ...Petitioner
                                Versus





    State of H.P.                                                 ...Respondent.

    Coram:

Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1NO

For the petitioner:

r to ____________________________________________________________________

Mr. Vijender Katoch, Advocate.

    For the respondent:         Mr. Sudhir Bhatnagar, Additional
                                Advocate General with Ms. Seema
                                Sharma, Mr. Narender Singh Thakur
                                and Kamal Kant, Deputy Advocates


                                General and    Mr. Manoj   Bagga,
                                Assistant Advocate.




                         THROUGH VIDEO CONFERENCE

        FIR     Dated         Police Station                     Sections





        No.
        189     22.11.2020    Indora, District Kangra, 22-61-85                       of
                              H.P.                     NDPS Act





    Anoop Chitkara, Judge.

The petitioner, a habitual offender, under Narcotics

Drugs and Psychotropic Substances Act, 1985 (NDPS Act), is once

again in prison w.e.f. 22.11.2020 for possessing 8.70 gram of heroin

(Deacetyl morphine), has now come up before this Court under

Section 439 of CrPC, seeking bail, on the grounds that the quantity of

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

contraband allegedly seized is intermediate quantity and does not

restrict bail, because the quantity greater than 250 grams of heroin

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(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 a petition under Section

439 CrPC before the concerned Sessions Court. However, vide order

dated 29.12.2020 Ld. Special Judge-II, Kangra at Dharamshala, HP,

dismissed the petition because the accused is a habitual offender.

3. Status report mentions the following criminal history:

a) FIR No.177, dated 12.7.2009, registered under Section 15-

61-85 in police station Indora.

b) FIR No.294, dated 17.09.2011, registered under Section 15-

61-85 in police station Indora.

c) FIR No.51, dated 15.4.2015, registered under Section 22-

61-85 in police station Indora.

d) FIR No.115, dated 10.7.2015, registered under Section 379 read with Section 34 of IPC in police station Indora.

e) FIR No.86, dated 23.5.2016, registered under Section 21-

61-85 in police station Indora.

f) FIR No.36, dated 12.2.2017, registered under Section 21-

61-85 in police station Indora.

g) FIR No.148, dated 25.09.2017, registered under Section 21-

61-85 in police station Indora.

h) FIR No.221, dated 17.08.2018, registered under Section 436 read with Section 34 of IPC in police station Indora.

i) FIR No.287, dated 24.10.2018, registered under Section 21-

61-85 in police station Indora.

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

22.11.2020, investigator was on patrolling, where he received a secret

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information that the petitioner deals in the trade of narcotics from his

house. Subsequently, after taking authorization and associating

independent witnesses, investigator reached the house of Kans Raj,

petitioner herein, where, from the bed room, police recovered brown

coloured substance. The same was tested on drug detection kit and

found positive for heroin, which when weighed on electronic scale, it

measured 8.70 grams. The police also recovered three strips of

tablets "Lorzepam Tables IP Almazine 2.5". After that, the

investigator conducted procedural requirements of NDPS act

and Cr.P.C and arrested the accused. When tested in the

laboratory, the substance is found to be heroin and the tablets

as tramadol. 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 offence. He further insists that if

this Court is inclined to grant bail, then such a bond must be subject

to very stringent conditions.

7. Though, the petitioner is a habitual offender, but

quantity of heroin recovered from his is intermediate and given the

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act that the petitioner is in custody for the last more than two

months, this Court affords him last opportunity to mend his way.

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. 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 the number of cases as

criminal history, the prosecutions resulting in acquittal or discharge;

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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.

11. 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.

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.

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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 theCourt,

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 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 at Dharamshala, H.P.,"

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

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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, 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.

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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.

16. 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

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Arms Act, 1959, the petitioner shall be entitled to renew and take it

back in case of acquittal in this case.

17. 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 shallfile 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.

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.

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.

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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.

The petition stands allowed in the terms mentioned

above.

Anoop Chitkara, VacationJudge.

February 4, 2021 (R.Atal)