Vishal Kumar Alias Harsh v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH

Date of Decision: 19.01.2024 Vishal Kumar @ Harsh

...Petitioner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Rahul Bhargava, Advocate for the petitioner.

Mr. Shiva Khurmi, A.A.G., Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 04.11.2022 Vigilance Bureau, 7, 7-A, 8 of PC Act, 1988 FS-1, Punjab (Amendment) Act, 2018 and 420, 465, 467, 468, 471, 120-B IPC 1.

The petitioner incarcerated in the FIR captioned above has come up before this Court under Section 439 CrPC seeking bail.

2.

In paragraph 15 of the bail petition, the accused declares that he has no criminal antecedents.

3.

Petitioner's counsel prays for bail by imposing any stringent conditions and is also voluntarily agreeable to the condition that till the conclusion of the trial before the trial court, the petitioner shall keep only one mobile number, which is mentioned in AADHAR card, and within fifteen days of release from prison undertakes to disconnect all other mobile numbers. The petitioner contends that the further pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 4.

The State opposes bail.

5.

The facts of the case are extracted from reply dated 18.01.2024 filed by Lovepreet Singh, PPS, Deputy Superintendent of Police which reads as follows:- "I.

That on 04.11.2022, DSP Sukhminder Singh Chauhan along with DSP Tejinderpal Singh and other police

officials was present at Multani Dhaba, G.T. Road, Dalomajra, where he received a secret information that the passers in connivance with the GST officers/officials bring iron scrap on the vehicles with bills showing less amount or without bills or fake bills from outside states via Ambala- Rajpura Highway route, TeplaBanur route and other escape link routes and supply it to the Iron/Steel mills at Mandi Gobindgarh, District Fatehgarh and Khanna, District Ludhiana, thereby causing loss of crores of rupees to the government. Finding the information to be reliable and trustworthy, case/FIR No. 21 dated 04.11.2022 u/s 420, 465, 467, 468, 471, 120-B IPC and Section 7,7-A and 8 of the Prevention of Corruption Act was registered at PS Vigilance Bureau, FS-1, Punjab at Mohali against unknown persons.

II.

That thereafter, the nakabandi was laid down at Multani Dhaba, G.T. Road for checking the vehicles carrying scrap and during the checking, the following trucks loaded with scraps was signalled and stopped and the drivers of which could not gave satisfactory answers:- S.No.

Truck Numbers Apprehended Persons 1.

P.B. 10 FF 9339 Jaswant Singh 2.

H.R-67-A-5153 Joginder Singh 3.

H.R-45A-9102 Ram Kumar 4.

H.R-69-8347 Ashok Kumar 5.

H.R-45-A-9821 Gaurav Kumar III.

That all the accused persons were arrested on the spot and all the said 5 trucks were taken into police possession, in accordance with law. On 05.11.2022, all the accused persons were produced before the Ld. Court and their police remand was obtained for 03 days. Based upon the interrogation of the aforesaid arrested accused persons, the involvement of Pradeep Kumar @ Binni and Vishal @ Harsh (petitioner), Rupesh Yadav and Yogender also came to light in the commission of the offences of the present case/FIR No. 21 (supra). During interrogation, accused Gaurav Kumar disclosed that he is driver by profession and is the brother of accused Ashok Kumar and he has brought this vehicle bearing registration no. HR-45-A-9821 from village Farla, Tehsil Pundri, where it was standing in loaded condition.

Accused Gaurav Kumar further stated he was asked to transport this scrap in this vehicle by one Jagdish Kawatra, who is junk dealer and who told him to take this vehicle along with the iron scrap and bills to Manas Weighing Machine, Amloh Road, Gobindgarh and the petitioner Vishal Kumar Harsh used to meet him at the aforesaid weighing machine and at his asking, his vehicle used to enter the factory at Gobindgarh as it was told to him by his owner Jagdish Kawatra. CoAccused Gaurav Kumar further stated that all the iron scrap was delivered at the asking of the petitioner, who acted as passer and who used to facilitate the delivery of the aforesaid iron scrap in connivance with the Excise Department officials without paying the GST to the Government. Thereafter, the aforesaid arrested accused persons were again produced before the Ld.

Court on 07.11.2022 wherein, they were sent to the judicial remand by the Ld. Court."

6.

As per paragraph 9 of the bail petition, the petitioner is in custody since 01.11.2023. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this

case, there would be no justifiability for further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order. 7.

In Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, Supreme Court holds, [28] We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.

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 v. State (NCT of Delhi),2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

9.

Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for 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 CrPC, 1973. 10.

In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M27097-2023, decided on 29-05-2023, this court observed, [10] The exponential growth in technology and artificial intelligence has transformed identification techniques remarkably. Voice, gait, and facial recognition are incredibly sophisticated and pervasive. Impersonation, as we know it traditionally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from justice, then in such cases, appropriate conditions can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss. [21] In this era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes the technology has brought to human lives, it is only fitting that the

dependence of the accused on surety is minimized by giving alternative options. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. 11.

Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above, in the following terms: (a). Petitioner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the concerned court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned officer/court must satisfy that if the accused fails to appear in court, then such surety can produce the accused before the court.

OR (b). Petitioner to hand over to the concerned court a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automatic renewal of the principal and the interest reverting to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the petitioner to prepare an account payee demand draft favouring concerned Chief Judicial Magistrate for the similar amount. (c).

Such court shall have a lien over the funds until the case's closure or discharged by substitution, or up to the expiry of the period mentioned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.

(d). The petitioner is to also execute a bond for attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail petition and all other stipulations, terms, and conditions of section 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.

(e). While furnishing personal bond, the petitioner shall mention the following personal identification details:

1. AADHAR number

2. Passport number, (If available), when the court attesting the bonds, thinks appropriate or considers the accused as a flight risk.

3. Mobile number (If available)

4. E-Mail id (If available) 12.

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.

13.

Petitioner to comply with their undertaking made in the bail petition, made before this court through counsel as reflected at the beginning of this order. If the petitioner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the victim/complainant may file any such application for the cancellation of bail, and the State shall file the said application. 14.

The petitioner is directed not to keep more than one prepaid SIM, i.e., one prepaid mobile phone number, till the conclusion of the trial; however, this restriction is only on prepaid SIMs [mobile numbers] and not on post-paid connections or landline numbers. The petitioner must comply with this condition within fifteen days of release from prison. The concerned DySP shall also direct all the telecom service providers to deactivate all prepaid SIM cards and prepaid mobile numbers issued to the petitioner, except the one that is mentioned as the primary number/ default number linked with the AADHAAR card and further that till the no objection from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the petitioner's name.

by this order. This condition shall continue till the completion of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while granting bail under Unlawful Activities (Prevention) Act, 2002, Supreme Court had directed imposition of the similar condition, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the time they remain on bail and shall inform the Investigating Officer of the NIA, their respective mobile numbers."

15.

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 remain in force throughout the trial and after that in Section 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of conditions.

16.

The conditions mentioned above imposed by this Court are to endeavour that the accused tries to reform, does not repeat the offence and to provide a sense of security to the victim. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A ThreeJudge bench of Hon'ble Supreme Court holds that "The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed."

17.

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 any language that the petitioner understands.

18. If the petitioner finds 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.

19. 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.

20. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior. 21.

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 in aforesaid terms. All pending applications, if any, stand disposed. (ANOOP CHITKARA) JUDGE 19.01.2024 Whether speaking/reasoned:

Yes Whether reportable:

No.