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2020 DIGILAW 280 (HP)

Prem Singh v. State of Himachal Pradesh

2020-05-14

ANOOP CHITKARA

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JUDGMENT : Anoop Chitkara, J. 1. For possessing 84 grams of Heroin (Diacetylmorphine), the petitioner, who is under arrest, on being arraigned as an accused in FIR Number 93 of 2019, dated 8.10.2019, registered under Sections 21, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in Police Station, Kumarsain, District Shimla, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail. 2. The Court had requested learned Additional Advocate General to have telephonic instructions in the matter from the concerned Police Station, and to procure status report immediately, either through WhatsApp/e-mail and forward the same to this Court on e-mail id highcourt-hp@nic.in and also send the scanned copy or PDF copy of the status report to the learned Counsel for the petitioner on his WhatsApp number. 3. Ms. Rita Goswami, learned Additional Advocate General has filed the status report through e-mail, printout whereof has been placed on record. She further submits that she has sent a copy of the status report to Mr. Manoj Pathak, Advocate, learned Counsel for the petitioner on his WhatsApp number. 4. I have read the status report and heard counsel for the parties through video conference. 5. The petitioner did not file any power of attorney. To contain the spread of Novel Corona Virus, the Epidemiologists have advised to maintain social distancing in the entire world. Consequently, to avoid unnecessary congregation, this Court exempts the petitioner from fling the power of attorney. 6. Prior to the present bail petition, the petitioner had filed bail petition under Section 439 CrPC, before this Court. However, vide order dated 19.2.2020, passed in Cr.MP(M) No. 135 of 2020, this Court had dismissed the petition. FACTS 7. The gist of the First Information Report and the status report is that on 7th October, 2019, the Police Party was present for patrolling on NH-5 at Kingal Bazar and at that time, the Investigating Officer received a secret information that a person named Prem Singh, sting in an Alto Car bearing No. HP-35-5606, sells Heroin to people. The Investigating Officer found the information to be reliable and because he was of the opinion that in case he seeks search warrant or authorization letter then the accused might take advantage of the time and would do away with the contraband. The Investigating Officer found the information to be reliable and because he was of the opinion that in case he seeks search warrant or authorization letter then the accused might take advantage of the time and would do away with the contraband. According to the Investigating Officer, the time being 10:00 p.m., it was not possible to obtain authorization letter or search warrant. Consequently, the Investigating Officer reduced into writing the secret information under Section 42(2) of the NDPS Act and sent the same to the Sub Divisional Officer, Rampur. After that, the Investigating Officer associated two independent witnesses and then waited for the vehicle to come. In the meantime, the Sub Divisional Officer, also reached on the spot. At around 11:30 p.m., the aforesaid car bearing No. HP-35-5606 came from the side of Shimla-Narkanda. The Police noticed two persons sitting in the vehicle, one of whom was the present petitioner, Prem Singh and other named Abhishek. The Police then conducted search of the persons and after that conducted the search of the vehicle, but could not find anything. After that, the Police took the car to automobile service station and placed the same on the deck and on checking carefully, the Police noticed three Polythene Packets sticked with brown coloured tape with the fuel pipe of the car. On opening the same, the Police prima facie noticed contraband inside the Polythene Packet, which was Heroin. The Police took photographs and also complied with the procedural requirements under the NDPS Act and the CrPC and arrested the petitioner. PREVIOUS CRIMINAL HISTORY 8. As per the counsel for the petitioner as well as the status report, the petitioner has following criminal history:- (i) FIR No. 95/09, dated 4.7.2019, under Sections 457, 342, 511 IPC, Police Station, Banjar, District Kullu, H.P.; (ii) FIR No. 212/09 dated 19.11.2009, under Section 20 of ND & PS Act, Police Station Sadar, District Shimla, H.P.; (iii) FIR No. 32/10 dated 15.4.2010, under Sections 341, 342, 354 IPC, Police Station, Anni, District Shimla; and (iv) FIR No. 181/19 dated 12.8.2019, under Sections 21, 29 of the ND & PS Act and under Sections 181, 192 of MV Act, Police Station West Shimla. SUBMISSIONS: 9. The learned counsel for the bail petitioner submits that the allegations against the petitioner are false and he has nothing to do with the said allegations. SUBMISSIONS: 9. The learned counsel for the bail petitioner submits that the allegations against the petitioner are false and he has nothing to do with the said allegations. He further states that petitioner has to shoulder responsibility of his family and also submitted that his bail petition be considered on humanitarian grounds in view of the spread of the Covid-19 pandemic. ANALYSIS AND REASONING: 10. Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. 11. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act. 12. The following aspects are relevant to decide the present bail petition: (a) As per the FIR, the substance involved is Heroin (Diacetylmorphine), mentioned at Sr. No. 56 of the Notification, issued under Section 2(viia) and (xxiiia) of NDPS Act, specifying small and commercial quantities of drugs and psychotropic substances, wherein the small quantity is lesser than 5 grams, whereas commercial quantity if greater than 250 grams. (b) The quantity of drug involved is less than Commercial Quantity. As such the rigors of Section 37 of NDPS Act shall not apply in the present case. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence. (c) Although there is criminal history of the bail petitioner and on this ground previously the Court below had rejected the bail application of the petitioner. Resultantly, the present case has to be treated like any other case of grant of bail in a penal offence. (c) Although there is criminal history of the bail petitioner and on this ground previously the Court below had rejected the bail application of the petitioner. But keeping in view the current Covid-19 pandemic, the petitioner has come up again before this Court on the grounds that his family is facing extreme financial difficulty and the family is extremely concerned about each other. Without this case being cited as a precedent, keeping in view the peculiar circumstances coupled with the fact that the Heroin recovered from the petitioner was 84 grams, whereas, small quantity is lesser than 5 grams, however, this Court is inclined to afford last opportunity to the petitioner to mend his ways, making it very clear that in case, the petitioner repeats the offence, under NDPS Act, be it even the small quantity, then this bail shall automatically stand cancelled and the State shall file an application for cancellation of bail already granted in FIR No. 181/2019, registered at Police Station, West Shimla, under Sections 21 and 29 of the ND & PS Act. (d) The material aspect of the investigation is complete. (e) The petitioner is in judicial custody since 8.10.2019. (f) The petitioner is a permanent resident of address mentioned in the memo of parties; therefore, his presence can always be secured. (g) Before releasing the petitioner from custody, her/his AADHAR and other proofs of identity to secure presence during trial. 13. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents of the bail bonds, and the furnishing of personal bond shall be deemed acceptance of all stipulations, terms and conditions of this bail order: (a) The petitioner shall furnish personal bond in the sum of Rs. 50,000/- and one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered. 50,000/- and one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered. The petitioner be released on his personal bonds and further he shall furnish the surety bond of the similar amount, on or before Jun 30, 2020, failing which this bail shall automatically stand cancelled and the petitioner shall surrender on Jul 1, 2020, before the Court accepting the bond, from where he is being released. The Court is dispensing with the requirement of furnishing surety bond at this stage to avoid travelling of persons to furnish the sureties, to abide by the lockdown ordered by the Government for the safety of the people, by maintaining social distancing to contain the spread of the Covid-19 disease. (b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of Section 437-A of the CrPC. (c) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let of before 5 PM. The petitioner shall not be subjected to third-degree treatment, indecent language etc. (d) The petitioner shall fully co-operate in the investigation and shall not hamper it, in any manner what so ever. (e) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official. (f) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence. (g) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court. (h) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. (g) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court. (h) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him. (i) The petitioner shall attend the trial on each date, unless exempted. (j) In case of Non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever. (k) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence. (l) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity or if he commits any offence where the sentence prescribed is seven years or more, then this bail order shall stand cancelled automatically. (l) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity or if he commits any offence where the sentence prescribed is seven years or more, then this bail order shall stand cancelled automatically. In such a situation, the bail already granted to the petitioner in previous case registered against him, (as mentioned supra), vide FIR No. 181/2019, shall be liable to be cancelled and the State shall move appropriate application for its cancellation. (m) The petitioner shall surrender all firearms along with ammunitions, if any, and the arms license to the concerned authority within 30 days from today. (n) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after fling of the Police report also to the trial Court. (o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail. 14. In case the petitioner finds the bail condition as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term, the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be. 15. The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular. 16. The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions. 17. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the aforesaid terms. 18. The Court attesting the personal bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number, WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the personal bonds. 18. The Court attesting the personal bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number, WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the personal bonds. The petitioner shall also furnish details of personal bank account. 19. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation. 20. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner. 21. 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. 22. The petition stands allowed in the terms mentioned above. 23. The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, which shall be sufficient for the purposes of the record. 24. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same.