Surender Thakur vs State Of H.P
2021 Latest Caselaw 863 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 85 of 2021 Reserved on: 20.1.2021.

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Date of Decision: 4.2.2021.

    Surender Thakur                                                      ...Petitioner.

                                  Versus





    State of H.P.                                                       ...Respondent.

    Coram:





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

    Whether approved for reporting?1 NO

    For the petitioner:    M/s. Avinash sharma and Ms. Kanta Thakur, Advocates.

For the respondent: Mr. Ajay Vaidya, Senior Addl. Advocate General with Mr.

Bhupinder Thakur and Mr. Gaurav Sharma, Dy.A.Gs & Mr. Rajat Chauhan, Law Officer.

                           THROUGH VIDEO CONFERENCE


        FIR No. Dated           Police Station                     Sections




        137/2020 24.12.2020     Dharampur, Distt. Solan            21 of NDPS Act





    Anoop Chitkara, Judge.

A habitual offender, under Narcotics Drugs and Psychotropic Substances Act,

1985 (NDPS Act), is once again in prison w.e.f. 24.12.2020 for possessing 18.01

grams of diacetylmorphine (heroin) and 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 greater than 250 grams of heroin falls in the category of the commercial

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

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.

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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 4.1.2021, Ld. Special Judge,

Solan HP, dismissed the petition because the accused is a habitual offender.

3. The bail petition is silent about criminal history, however, Ms. Kanta Thakur,

learned counsel for the bail petitioner states on instructions that the petitioner had

one similar case. The status report mentions the following criminal history:

a) FIR No.41/20 dated 7.2.2020 registered at Police station West Shimla under Sections 21 and 29 of NDPS Act

4. Briefly, the allegations against the petitioner are that on 24.12.2020, the

investigating officer of SIU, Solan, who was on patrolling duty in Solan District,

received a secret information. The informant told him that one person, who is

travelling in a taxi from Dharampur towards Kumarhatti, is trying to sell heroin. The

investigating officer found the information to be reliable and followed the provisions

of Section 42 of NDPS Act and proceeded towards the spot. At around 8.05 p.m,

they noticed the said Alto Car and signaled the driver to stop the vehicle.

Immediately, the co-passenger sprung out of the door and he was trying to conceal

something under the seat. After that, he ran away and jumped 20 feet down from the

retaining wall. He suffered injuries. Thereafter, he could not run and retained.

Subsequently, the police recovered heroin from the Alto Car and took the said

person to MMU Hospital. On inquiry, his name was revealed as petitioner herein.

The police, after conducting the procedural requirements of NDPS Act and Cr.PC,

registered the aforesaid FIR and arrested the accused.

5. Ms. Kanta Thakur, learned counsel for the petitioner contends that

incarceration before the proof of guilt would cause grave injustice to the petitioner

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and family. She submits that a final opportunity be given to the petitioner keeping in

view his young age and that he is a student.

6. On the contrary, Mr.. Bhupender Thakur, learned Deputy Advocate General

contends 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. The status report reveals that it came in the investigation that the accused is a

drug dependent. A large number of marks were noticed on his person, which fully

corroborate such investigation. It also came in the investigation that being drug

dependent, the petitioner bought the substance from Sonipat coupled with the fact

that the petitioner is in judicial custody from 24.12.2020.

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.

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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; 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. Reasons for superseding criminal history: Although the petitioner was

previously arrested for possessing 12.01 grams of heroin, but given the fact that he is

aged 22 years and a student, last opportunity can be afforded to him.

12. 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.

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

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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 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 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., 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

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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 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

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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. 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.

18. 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.

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

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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 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) Vacation Judge.

February 4, 2021 (mamta)