Anoop Chitkara, J
1. The petitioner, apprehending arrest in FIR No.349 dated 01.06.2021, registered under Section 21 of Narcotic Drugs and Psychotropic Substances
Act, 1985 at Police Station Rohtak City, District Rohtak, came up before this Court under Section 438 Cr.P.C., seeking anticipatory bail.
2. In Para 9 of the bail petition, counsel for the petitioner declares that no other case is pending against the petitioner. Ld. Counsel for the bail
petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when
on conviction, the sentence imposed was more than three years.
3. Briefly, the allegations are against one Sachin from whom a recovery of 9 gm heroin was effected and on his statement the petitioner are
implicated. The other details are not necessary for the purpose of deciding the present petition.
4. Ld. Counsel for the petitioner contends that the the petitioner has joined the investigation and more custodial investigation would serve no purpose
whatsoever and incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
5. On instructions from ASI Kuldeep Singh, learned State counsel does not dispute the statement given by counsel for the petitioner. While opposing
the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent
conditions.
6. The learned counsel for the petitioner submits that the petitioner assures this Court that he shall not repeat or involve himself in such offences in the
future.
REASONING:
7. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must
enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu
Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to
bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima
facie case, the Court records reasons for its satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail
does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing requires, and a change in
the fact situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might
perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from
the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh when
considering the question of jail. So also, the heinousness of the crime. In GudikantiNarasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16),
Supreme Court held that the delicate light of the law favors release unless countered by the negative criteria necessitating that course. In Prahlad
Singh Bhati v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and
similar other considerations. In Dataram Singh v State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of
bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously,
compassionately, and in a humane manner. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby
making the grant of bail illusory.
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. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC
570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between
the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose conditions
countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation.
9. Keeping in view the nature of allegations and other facts that the quantity recovered from the petitioner, is just above the commercial quantity, the
interim order dated 13.09.2021 is made absolute.
10. This Court feels that one opportunity be afforded to the petitioner to course correct and behave in a civilized manner.
11. Given the nature of allegations, no pre-trial incarceration is required. Without commenting on the case's merits and the circumstances peculiar to
this case, the petitioner makes a case for release on bail, subject to the following terms and conditions, which shall be over and above and irrespective
of the contents of the form of bail bonds in chapter XXXIII of Cr.P.C., 1973.
12. The petitioner shall be released on bail in the FIR mentioned above, subject to furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and
with one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the Investigator. Before accepting the surety, the Attesting Officer
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. The furnishing of the personal bond shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order.
14. The petitioner to execute a bond for attendance in 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 Cr.P.C.
15. 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, phone numbers, WhatsApp number,
e-mail accounts, to the Police Station of this FIR to the concerned Court.
16. 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.
17. 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 and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or
the Court, or to tamper with the evidence.
18. Given the gravity of accusations and the heinous nature of the offence, the petitioner shall surrender all weapons, firearms, ammunition, if any,
along with the arms license to the concerned authority within 30 days from today and inform the Investigator about the compliance. However, subject
to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case.
19. The petitioner shall, under no circumstances, contact, call, text, remarks, stalk, stare, make any gestures, show or express any unusual or
inappropriate, verbal or otherwise objectionable behavior, to or in front of the victim, either physically or through any other mode, or roam around the
victim's home, and shall also stay away from the victim and her house.
20. During the trial's pendency, if the petitioner repeats or commit 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
Cr.P.C.
21. 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.
22. 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.
23. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.
24. 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.
25. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
26. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along
with case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity,
such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
Petition allowed.
