Ashu vs State Of H.P
2021 Latest Caselaw 819 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 109 of 2021 Reserved on: 21st January, 2021.

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Date of Decision: 4th February, 2021.

    Ashu                                                                   ...Petitioner.





                                   Versus

    State of H.P.                                                         ...Respondent.

    Coram:

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

    Whether approved for reporting?1 Yes
    For the petitioner     :       Mr. Malay Kaushal, Advocate.
    For the respondent :
                           r       Mr. Narinder Guleria & Mr. Vikas Rathore, Addl.
                                   A.Gs. with Mr. Bhupender Thakur & Ms. Divya

                                   Sood, Dy. A.Gs.

                              THROUGH VIDEO CONFERENCE

        FIR No.   Dated          Police Station               Sections



        138/20    12.8.2020      Dharamshala,        District 29 & 29 NDPS Act and
                                 Kangra, H.P.                 181 & 192 MV Act




    Anoop Chitkara, Vacation Judge.

A married lady, aged 20 years was travelling along with her husband and

driver, both of whom had criminal history of possessing Charas and this time also police recovered 1 kg 76 grams of charas from the Car and arrested all the three, who

presently are in custody since 12th August, 2020 and now the lady has come up before this Court under Section 439 of CrPC, seeking bail, on the grounds that she was unaware of the contents of the bag, from which the charas was recovered.

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 Judge.

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

3. The petition is silent about criminal history, however, Mr. Malay Kaushal, learned Counsel for the bail petitioner states on instructions that the petitioner has no

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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 12.8.2020, the police official were conducting investigation in some case and in that context they were present at Dadi bypass. At that time one vehicle came, which on noticing the Police started taking U turn. It raised suspicion in the mind of the investigator and the

police officials were able to nab the driver. One male and a female were also sitting on the back seat. On inquiry, the driver told his name as Mohan (A-2). The male sitting on the back seat told his name as Gian Chand (A-1) and the lady as Ashu (A-

3), petitioner herein. In the presence of the independent witnesses, the police

searched the vehicle and in front seat there was a bag, which on opening had cannabis sticks in it. On weighing it on electronic scale, it measured as 1 kg and 76 grams of Charas. Thereafter the police conducted other procedural requirements

under NDPS Act and Cr.PC and arrested the accused. The laboratory tested the substance as Charas. Based on these allegations, the Police registered the FIR

mentioned above.

5. Learned counsel for the bail 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; 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. Argument on behalf of the State is that the Police have collected sufficient evidence against the accused, which prima facie points out towards her involvement. Learned Additional Advocate General 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.

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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.

8. The quantity involved is commercial as such, it is for the petitioner to satisfy

the rigors of Section 37 of the NDPS Act. The petitioner Ashu, is woman aged about 20 years. She is married to accused Gian Chand Mohan, who is 29 years of age. The status report reveals that Gian Chand Mohan has criminal history and one case for

possession Charas is already pending against him. It appears that she must have

married within last two years. Other accused Mohan Singh is also a previous offence of possessing Charas.

9. The possibility of young woman aged 20 years, who must have recently

married to a person who has criminal history of possessing charas and was travelling with another person, who also had a similar criminal history, cannot be ruled out that

she was not aware of the contents of the bag which was on the front seat near the driver. She has no criminal history of her own. As such, on this ground alone, she

has satisfied the rigors of Section 37 of the NDPS Act, and has made out a case for bail.

10. 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.

11. 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.

12. Given the above reasoning, coupled with the peculiar facts and circumstances

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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 her 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.,"

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 her Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such

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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 deposit her passport, if not already seized by the Police.

d) The petitioner shall, within thirty days of her 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. She shall keep the phone location/GPS always on the "ON" mode. Before replacing her mobile phone, she 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 her to share her location, then she shall immediately do so. The petitioner shall neither clear the location history nor format her phone without permission of the concerned SHO/I.O. She shall also not clear the WhatsApp chats and calls

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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.

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.

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, 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.

18. 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

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amount without interest) that the Government(s) might incur to produce her

before such 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.

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, and any Advocate for the Petitioner can 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),
    February 04, 2021 (ps).                   Vacation Judge.




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