Priyanshu vs State Of H.P
2021 Latest Caselaw 624 HP

                                               1




    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                  Cr.MP(M) No.78 of 2021
                                  Date of Decision: 19th January, 2021.




                                                                          .

    Priyanshu
                                                                           ...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:    Mr. Anirudh Sharma, Advocate.

    For the respondent: Mr. Ajay Vaidya, Senior Additional Advocate General with
                        Mr. Bhupinder Thakur & Mr. Gaurav Sharma, Dy. A.Gs.
                        and Mr. Rajat Chauhan, Law Officer, for the State.



    THROUGH VIDEO CONFERENCE




        FIR No. Dated           Police Station               Sections
        257/2020 6.12.2020      Sadar Solan, District Solan, 21 and 29 of the





                                H.P.                         ND&PS Act.

    Anoop Chitkara, Judge (oral)

The petitioner, who is in custody, under Narcotics Drugs and Psychotropic

Substances Act, 1985 (NDPS Act), since 6.12.2020, for possessing 7.03 grams of

Heroin (Diacetylmorphine), 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 (Diacetylmorphine), 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 Section 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 17.12.2020, Ld. Special Judge-

III, Solan, District Solan, H.P., dismissed the petition being the same merit less.

3. In Para 7 of the bail application, the petitioner declares having no criminal

history. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner are that on 6.12.2020, the police

officials were patrolling the jurisdiction of Police Station, Sadar Solan. In the

midnight, near Saproon Chawk, the police official directed a Maruti van to stop, but

instead of stopping, the driver of the van took the vehicle on the opposite side.

However, there were barricades, as such, the van could not cross. It lead the

suspicion and the police noticed five young males sitting in the van. On inquiry, they

got perplexed. It raised further suspicion and the police officials checked the dash

board of the Maruti van which led recovery of a brown coloured substance. On

checking the same from Drug Deduction Kit, it tested positive for Heroin

(Diacetylmorphine). The contraband on weighing was found to be 7.03 grams. On

completing the procedural formalities, the police registered the FIR mentioned

above.

4. Ld. Counsel for the petitioner contends that incarceration before the proof of

guilt would cause grave injustice to the petitioner and his family.

5. 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.

6. Reasoning: Given the fact that the accused has no criminal history and also

that he is in custody since 6.12.2020, the petitioner has made out a case for grant of

.

bail.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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 the Court, keeping in

mind the Jurisprudence behind the sureties, which is to secure the presence of the

accused.

12. 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, Solan, District Solan, H.P.,"

9. 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.

10. Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

If such a fixed deposit is made in physical form, i.e., on paper, then the

11. original receipt shall be handed over to the concerned Court.

12. 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.

13. 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.

14. After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

15. 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.

16. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. This order does not, in any manner, limit or restrict the rights of the

Police or the investigating agency from further investigation per law.

18. 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.

.

19. In return for the protection from incarceration, the Court believes that

the accused shall also reciprocate through desirable behavior.

20. 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.

January 19, 2021 (ks)