Nikhil Bekta vs State Of H.P
2021 Latest Caselaw 907 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.90 of 2021

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                                       Reserved on: 20.01.2021





                                       Date of Decision: February 4, 2021


    Nikhil Bekta                                                  ...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. R. S. Chandel, Advocate.

    For the respondent:         Mr. Ajay Vaidya, Senior Additional
                                Advocate General, with Mr. Bhupender
                                Thakur & Mr. Gaurav Sharma       and


                                Mr. Rajat Chauhan, Law Officer.




                          THROUGH VIDEO CONFERENCE





        FIR       Dated       Police Station                      Sections
        No.
        07        08.01.20    Theog, District Shimla, 20 and 29                        of
                  21          H.P.                    NDPS Act.





    Anoop Chitkara, Judge.

The petitioner, who is in custody under Narcotics Drugs

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

08.01.2021, for possessing Charas, has now come up before this

Court under Section 439 of CrPC, seeking bail, on the grounds that

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

the quantity of contraband allegedly seized is intermediate quantity

and does not restrict bail, because the quantity greater than 1kg of

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charas, 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. 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-3 of the bail application, the petitioner declares

having no criminal history.

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

08.01.2021, police officials were on patrol duty in Tehog Bazar. At

around 2:00 pm, ASI received secret information about the petitioner

indulging in sale of charas. After complying with the provisions of

Section 42 of NDPS Act, he reached at Himalaya Amar Dhaba, where

the alleged person was present. The investigator associated

independent witnesses. On entering Hamalaya Amar Dhaba, he

noticed a boy sitting on the last bench. On inquiring his name, he

became perplexed. After that he told his name as the petitioner,

herein, of 20 years of age. In the presence of independent witnesses,

police conducted search of the bag, which he had kept in his lap, and

recovered charas from it, which on weighing by electronic scale, was

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found to be 687 grams and its gross weight was 700 grams. After

that the investigating officer completed the procedural requirements

of the NDPS Act and Cr.P.C. and arrested the accused.

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, a 20 years old boy, is a first time offender

and already in custody for sufficient time in relation to the quantity

of contraband recovered from him. Thus, the petitioner makes out a

case for grant of bail.

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.

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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. r

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.

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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.

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 " Additional Chief Judicial

Magistrate, Theog , District Shimla, 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

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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

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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

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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 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, VacationJudge.

February 4, 2021 (R.Atal).