Vijay Laxmi vs State Of H.P
2021 Latest Caselaw 842 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.262 of 2021 Reserved on: 03.02.2021

.

                                          Date of Decision: Feb 4, 2021





    Vijay Laxmi                                                        ...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. Jyotirmay Bhatt, Advocate.

For the respondent: Mr. Rajinder Dogra, Sr. Additional Advocate General with Mr. Anil Jaswal, Addl. Advocate General and Mr. Vikrant Chandel, Deputy Advocate General.

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        FIR      Dated          Police Station                         Sections
        No.
        11       29.1.2021      Parwanoo, District Solan, 18 of NDPS Act





                                H.P.

    Anoop Chitkara, Judge.

The Petitioner who is in custody under Narcotics Drugs

and Psychotropic Substances Act, 1985 (NDPS Act), w.e.f.

29.01.2021, for possessing 138 grams of opium, 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

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

greater than 2.5 kilo grams of opium, falls in the category of the

commercial quantity; hence the restrictions for bail imposed in S. 37

.

of NDPS Act, do not apply.

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.

3. In Para 2 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

29.01.2021, when police officials of aforementioned police station

were conducting patrolling in their jurisdiction, then investigator

received secret information that one vehicle, which is coming from

Pinjore to Parwanoo, has drugs in it. After complying with the

provisions of Section 42(2) of NDPS Act, police associated

independent witnesses. Police officials spotted the car and when

checked the same, below the seat of the driver, they recovered one

polythene packet, containing 138 grams of opium. After that, the

investigator conducted procedural requirements of NDPS Act and

Cr.P.C and arrested the accused. 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. While opposing the bail, the alternative arguments on

behalf of the State are that if this Court is inclined to grant bail, then

such a bond must be subject to very stringent conditions.

7. The petitioner is a maiden offender and already in

custody for the sufficient time in relation to the quantity of opium

and she should be given one chance to reform.

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. 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.

11. 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.

12. 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 theCourt, keeping in mind

the Jurisprudence behind the sureties, which is to secure the

.

presence of the accused.

13. 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

Solan, 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 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.

14. 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 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.

d) 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.

e) 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.

15.

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.

16. 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.

17. 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.

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

.

rights of the Police or the investigating agency from further

investigation per law.

19. 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.

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

believes that the accused shall also reciprocate through desirable

behavior.

21. 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, Vacation Judge.

February 4, 2021 (R.Atal)