Anoop Chitkara, J
1. A habitual offender, under Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), is once again in prison w.e.f. 14.6.2021 for
possessing 10.92 grams of heroin and has now come up before this Court under Section 439 of CrPC, seeking regular bail.
2. Earlier, the petitioner had filed the following bail petitions:
(a) Bail Application No. 51-S/22 of 2021, titled as Tushar Thakur Vs. State of HP was filed before the Court of Ld. Special Judge, Solan, H.P. and
the same stood dismissed on 6.7.2021.
3. Para 8 of the bail petition and status report mentions the following criminal history:
a) FIR No. 16 of 2021 was registered at Police Station Parwanoo under Section 21 of NDPS Act against the accused.
4. Briefly, the allegations against the petitioner are that on 14.6.2021 police officials of the above mentioned police station were patrolling in their
jurisdiction. At around 12:25 day time, one car came from the side of Solan. Since the driver was not wearing seat belt, as such the Investigator
signalled him to stop. The driver disclosed his name as Sanjeev Kumar (A1). In the meanwhile, the persons sitting adjacent to the driver’s seat
took out something from his pocket and kept it in the drawer of the vehicle. It raised suspicion. During search, the police recovered 10.92 grams of
heroin from the dashboard of the vehicle. Based on these allegations, the Police registered the FIR mentioned above. 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. On the contrary, the contention on behalf of the State is 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.
REASONING:
7. Though the petitioner is a habitual offender, but the quantity of the heroin recovered from him is 10.92 grams, which is less than commercial
quantity, hence in the facts and circumstances of the case, this Court is granting him last opportunity to mend his way.
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. 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. Without commenting on the case's merits, given the investigation stage, the period of incarceration already undergone, and the circumstances
peculiar to this case, the petitioner makes a case for release on bail.
12. Given the above reasoning, 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 his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-),
and shall furnish one surity of Rs. Twenty-five thousand (INR 25,000/-), 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 surity is 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 a personal bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten
thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district.
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.
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 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, within thirty days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the
SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the “ON†mode. Before replacing his mobile
phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating officer
asks him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone without
permission of the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned
SHO/I.O.
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, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for
any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge
in criminal activities. 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 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 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.
In the facts and circumstances peculiar to this case, the petition is allowed in the terms mentioned above.
Copy Dasti.
