Jai Deep vs State Of H.P
2021 Latest Caselaw 922 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 161 of 2021 Reserved on: 29.01.2021.

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                                       Date of Decision: 04.02.2021





    Jai Deep                                                        ...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. Vipin Pandit, 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.
        116     24.10.2020
                         Kumarsain,                District 20 of NDPS Act
                         Shimla, H.P.





    Anoop Chitkara, Judge.

The petitioner, who is in custody under Narcotics Drugs

and Psychotropic Substances Act, 1985 (NDPS Act), w.e.f. 24.10.2020

for possessing 998 grams of charas, 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

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

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

charas, falls in the category of the commercial quantity; hence the

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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 13.1.2021 Ld. Special Judge-II, Kinnaur at Rampur Bushehar,

HP, dismissed the petition because the cases of NDPS Act are on rise,

which has put the carrier of children and youth at stake and is also

spreading its hands in the society.

3. In Para -8 of the bail application, the petitioner declares

having no criminal history.

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

24.01.2020, police officials were conducting patrolling for traffic

checking and detection and prevention of crime in private vehicle. At

9:30 a.m., when they reached Jabali, near Dugra Mata Temple,

towards Police Station Kumarsain, then one HRTC bus came from

Kingal side and police officials stopped the said bus. This bus was

bound from Jabo to Chandigarh via Shimla. On seat Nos.17,18 and

19, only one person was sitting on seat No.18 and other seats were

vacant. On inquiry, the passenger could not give satisfactory reply.

This raised suspicion in the mind of investigator. He associated

conductor and another passenger as witnesses. He revealed his name

as Jai Deep, the petitioner herein, resident of Delhi. He had a

rucksack and it was checked, from which, police recovered black

coloured substance. On smelling the same, it was found to be charas.

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When the same was weighed on electronic scale, it measured 1.008

Kg, which was a commercial quantity. 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. Status report refers to the report of FSL. After the search,

investigating officer sent the entire substance for testing. Although,

FSL tested the contraband as charas, but when the same was

weighed in the laboratory, the entire weight alongwith polythene was

1.004 Kg., out of which, weight of the polythene packet was 0.006 Kg.

and the weight of the bulk charas was 0.998 Kg. NDPS Act provides

the quantity greater than 1Kg. of charas as commercial quantity.

Hence, the quantity of charas in the present case is less than

commercial quantity and coupled with the facts that the accused is a

maiden offender and is in custody for the sufficient time, therefore,

one opportunity can be afforded to him.

.

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

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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 "Additional Chief Judicial

Magistrate, Rampur 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

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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

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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

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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

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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,

VacationJudge.

February 04, 2020

(R.Atal)