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2025 DIGILAW 501 (HP)

Ifeanyi Frank v. State of Himachal Pradesh

2025-03-26

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Applicant-Ifeanyi Frank, has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as the 'BNSS'), seeking the relief of bail, during the pendency of the trial, in a case, arising out of FIR No.73/2019, dated 20 th September, 2019, registered with Police Station, Kandaghat, District Solan, H.P., under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’) and Sections 3 and 14 of the Foreigners Act. 2. According to the applicant, he has falsely been named and arrested, in the present case. 3. As per the applicant, he is innocent person and has falsely been implicated, in this case, as, he has nothing to do with the alleged offence. 4. It is the further case of the applicant that the police has recovered 52.60 grams of Chitta/Heroin, from one Wasudhir and on the disclosure statement of said Wasudhir, applicant was arrested on 24.09.2019. Further, there was alleged recovery of 14.3 grams of Heroin from Delhi. 5. According to the applicant, he has applied for regular bail, before the learned Special Judge, Solan, which was rejected and thereafter, the applicant had filed the bail application before this Court, bearing Cr.MP(M) No.232 of 2022, which was allowed on 03.07.2020 and the applicant was released on bail. 6. According to the applicant, thereafter, he was again went to Delhi and due to Covid-19 Pandemic, he could not appear before the learned trial Court and due to miscommunication between the learned counsel and the applicant, the trial Court had declared him, as proclaimed offender on 16.10.2023. 7. It is the further case of the applicant that in the interregnum, some locals have beaten him and he remained admit in Hospital at Delhi. When, he was admitted in the Hospital at Delhi, police inquired from the applicant about pendency of any case, upon which, he has disclosed that a trial is pending against him in Himachal. Thereafter, the police has inquired and it was found that he has already been declared, as, proclaimed offender, as such, he was shifted to Central Jail, Tihar. Thereafter, he was transferred to Model Central Jail, Kanda on 30.09.2024. 8. According to the applicant, due to the above mentioned reasons, he could not appear before the learned trial Cout and has been declared, as, proclaimed offender. 9. Thereafter, he was transferred to Model Central Jail, Kanda on 30.09.2024. 8. According to the applicant, due to the above mentioned reasons, he could not appear before the learned trial Cout and has been declared, as, proclaimed offender. 9. Thereafter, the applicant has again moved an application for bail, before the Court of learned Special Judge-III, Solan, District Solan, however, his application was dismissed vide order dated 16.12.2024. 10. On the basis of the above facts, a prayer has been to release the applicant, on bail, during the pendency of the trial. 11. When put to notice, the police has filed the status report, disclosing therein that on 20.09.2019, SI Sanjay Kumar, Incharge SIU, has submitted a rukka, disclosing therein that the I.O. on 20.09.2019, at about 8.45 p.m., along with other police official, was on patrolling duty to detect the crime relating to excise and narcotic drugs and they were present at the road leading to JP University at Rawali. 11.1. At about 8.55 p.m., the police party noticed a young man, having rucksack, on his back. The I.O., called the said young man, and he, at once, turned back and tried to flee away, upon which, the I.O. had developed suspicion, in his mind that the said person might have some stolen article in his possession. As such, he was nabbed, with the help of other police officials. 11.2. Meanwhile, a car bearing No.HP52A-8192, being driven by its driver, came there and was signaled to stop, in which, two persons; namely, Lila Dutt Sharma and Devender Kumar, were there. They were associated in the investigation, as, an independent witnesses. 11.3. Thereafter, the rucksack, carried by Wasudhir, was searched. On search, it was found containing 52.60 grams of Chita/Heroin. Other codal formalities were completed and accused Wasudhir was arrested. 11.4. During the investigation, accused Wasudhir, has disclosed about the applicant as the source, from whom he had purchased the Chita/Heroin. 11.5. Consequently, on 24.09.2019, applicant was contacted from the mobile phone of the accused Wasudhir. Consequently, the applicant was nabbed at Delhi. He was thereafter, brought to the Police Station. 11.6. During police remand, the applicant has disclosed that on 18.09.2019, he had sold Chita/Heroin, to accused Wasudhir, weighing 52.60 grams and according to him, he has kept concealed the remaining Chita in a room at Om Vihar, Phase-IA and disclosed that he could made the same recovered. He was thereafter, brought to the Police Station. 11.6. During police remand, the applicant has disclosed that on 18.09.2019, he had sold Chita/Heroin, to accused Wasudhir, weighing 52.60 grams and according to him, he has kept concealed the remaining Chita in a room at Om Vihar, Phase-IA and disclosed that he could made the same recovered. His statement under Section 27 of the Indian Evidence Act was recorded. He has got recovered Chita/Heroin, weighing 14.3 grams. 11.7. After receiving the positive report, regarding the contraband, so recovered, from Wasudhir and the applicant, police filed the charge-sheet. 11.8. It is the further case of the police that after releasing the applicant, on bail, on 03.07.2020, he has not appeared before the learned trial Court and has been declared, as, proclaimed offender. 12. On the basis of the above facts, a prayer has been made to dismiss the application. 13. In this case, the applicant was released on bail, by this Court, vide order dated 3.7.2020, passed in Cr.MP (M) No.232 of 2020. While releasing him on bail, this Court has put certain stringent conditions, which are reproduced, as under:- 18. As a result, the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing a personal bond in the sum of INR 1,55,000/, (INR One hundred and fifty-five thousand only), to the satisfaction of the trial Court, by depositing it in the official account, as per the details and directions of the trial Court. The petitioner shall also furnish one surety in the sum of INR 5000 (INR Five thousand only), to the satisfaction of the trial Court. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order: a) The petitioner shall give details of Passport Number, Visa number, phone number(s) (if available), WhatsApp number (if available), e-mail (if available), personal bank account(s) (if available), on the reverse page of the personal bonds and the officer attesting the personal bonds shall ascertain the identity of the bail-petitioner, through these documents. b) The Petitioner shall not leave India without the prior written approval of the Trial Court. b) The Petitioner shall not leave India without the prior written approval of the Trial Court. c) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the Passport number with details, email of the petitioner, and WhatsApp number, if any. d) The petitioner shall not influence, threaten, browbeat, or pressurize the complainant, witnesses, and the Police official(s). e) 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 them from disclosing such facts to the Police, or the Court, or to tamper with the evidence. f) Once the trial begins, the appellant shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC. g) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court. h) In the first instance, the Court shall issue summons and may inform the Petitioner about such summons through SMS/ WhatsApp message/ E-Mail. i) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-Mail. j) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper. j) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper. k) In case of Non-appearance, 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, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/ function what so ever. l) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so. m) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e- mail accounts, within 10 days from such modification, to the police station of this FIR, and also to the concerned Court. n) The petitioner shall deposit his passport, if not already seized by the Police. o) The petitioner shall, within ten 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. 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. p) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity, then it shall be open for the State to apply for cancellation of this bail order. q) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner, and even the concerned Court shall be competent to cancel the bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC. r) The learned counsel for the petitioner, as well as the attesting officer, shall explain the conditions of this bail to the petitioner. 14. Admittedly, those conditions have not been adhered to by the applicant, despite giving solemn undertaking. Not only the applicant, but, his surety also failed to comply with those directions. 15. The offences under the NDPS Act are non- bailable, as such, the bail cannot be claimed, as a matter of right. 16. The applicant was released on bail on 3.7.2020 and was arrested on 19.02.2024. As such, the plea of Covid-19 restrictions and miscommunication of the dates, cannot be accepted, as a gospel truth. 17. While considering question of bail, the availability of the accused, during the trial, is also one of the important factors, which is liable to be considered. 18. From the act and conduct of the applicant, this Court is of the view that the apprehension of the State, qua the fact that he will not be available for trial, cannot be said to be unfounded, at this stage. 19. Moreover, the trial has now been commenced and as such, the applicant is not able to make out a case for releasing him on bail. Consequently, the bail application is dismissed. 20. 19. Moreover, the trial has now been commenced and as such, the applicant is not able to make out a case for releasing him on bail. Consequently, the bail application is dismissed. 20. Any of the observations, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.