Anil Kumar v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRM-M-24223-2023 (O&M) Date of Decision: 17.05.2023 Anil Kumar ...PeƟƟoner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Chandan Singh Rana, Advocate for the peƟƟoner. Ms. Navreet K. Barnala, AAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 27.03.2023 Patara, 21(b)/61/85 of NDPS Act District Jalandhar 1.

The peƟƟoner incarcerated for violaƟng the above-menƟoned provisions of NarcoƟcs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR capƟoned above, on the allegaƟons of dealing in 15 grams of heroin, has come up before this Court under SecƟon 439 CrPC seeking bail on the ground that the quanƟty of contraband is less than commercial and rigours of S. 37 of NDPS Act do not apply. 2.

In paragraph 8 of the bail applicaƟon, the accused declares the following criminal antecedents:

Sr. No.

FIR No.

Date Offences Police StaƟon 1.

31.01.2021 ------ Hazipur, District Hoshiarpur 3.

PeƟƟoner's counsel prays for bail by imposing any stringent condiƟons. The peƟƟoner contends that the pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoner and family.

4.

While opposing the bail, the State contends that given the criminal past, the accused is likely to indulge in crime once released on bail. REASONING:

5.

In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds,

[10] It is not in dispute and highlighted that the second respondent is a siƫng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiƩal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdicƟon of the Court etc.

6.

In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail peƟƟon of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the anƟthesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First InformaƟon Reports, wherein the bail peƟƟoner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecuƟons resulƟng in acquiƩal or discharge, or when Courts quashed the FIR; the prosecuƟon stands withdrawn, or prosecuƟon filed a closure report; cannot be included. 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.

7.

NDPS Act makes dealing in 15 grams of heroin as a penal offence in the following terms:

Substance Name Heroin/ ChiƩa/ Smack QuanƟty detained 15 Gram QuanƟty type Intermediate Drug QuanƟty in % to upper limit of Intermediate 6.00% Default MulƟplier - for fixing upper limit of Commercial QuanƟty has been calculated as per following formula (i.e.

Commercial Qty. /Small Qty.) 50x If required, change default mulƟplier for fixing upper limit of Commercial QuanƟty Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 NoƟficaƟon No S.O.1055(E) dated 10/19/2001 Sr. No.

Common Name (Name of NarcoƟc Drug and Psychotropic Substance (InternaƟonal non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small QuanƟty 5 Gram

Commercial QuanƟty 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 NoƟficaƟon No S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No.

2(xvi)(d) Common Name (Name of NarcoƟc Drug and Psychotropic Substance (InternaƟonal non-proprietary name (INN) ****** Other non-proprietary name ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts;

ExplanaƟon.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparaƟons shall be calculated on the basis that a preparaƟon containing one per cent. of a substance means a preparaƟon in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparaƟon and so on in proporƟon for any greater or less percentage: Chemical Name Provided that the Central Government may, having regard to the developments in the field of methods of calculaƟng percentages in liquid preparaƟons prescribed, by rules, any other basis which it may deem appropriate for such calculaƟon.

8.

Thus, the quanƟty allegedly involved in this case is not commercial. Given this, the rigours of S. 37 of the NDPS Act do not apply in the present case. 9.

SecƟon 2 (vii-a) of the NDPS Act defines commercial quanƟty as the quanƟty greater than the quanƟty specified in the schedule. SecƟon 2 (xxiii-a) defines small quanƟty as a quanƟty less than the quanƟty specified in the table of the NDPS Act. The remaining quanƟty falls in an undefined category, generally called an intermediate quanƟty. All SecƟons in the NDPS Act, which specify an offence, also menƟon the minimum and maximum sentence, depending upon the quanƟty of the substance. The commercial quanƟty mandates a 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. When the quanƟty is less than commercial, the restricƟons of SecƟon 37 of the NDPS Act will not aƩract, and the factors for bail

become similar to the offence regular statutes. 10.

In Sami Ullaha v Superintendent NarcoƟc Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quanƟty, the rigors of the provisions of SecƟon 37 may not be jusƟfied.

11.

As per paragraph 1 of the bail peƟƟon, the peƟƟoner is in custody since 27.03.2023. Given the accused's age and other factors and circumstances peculiar to this case, it may be appropriate to afford the peƟƟoner a final opportunity to coursecorrect. Thus, the previous criminal history of the peƟƟoner is not being considered strictly at this stage as a factor for denying bail. Furthermore, a prima facie perusal of paragraph 4 of the bail peƟƟon reveals sufficient grounds for granƟng bail. 12.

In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a ConsƟtuƟonal Bench of Supreme Court held that the bail decision must enter the cumulaƟve effect of the variety of circumstances jusƟfying 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 enƟtled to bail if the Court concerned concludes that the prosecuƟon 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 saƟsfacƟon for the need to release such person on bail, in the given fact situaƟons. The rejecƟon of bail does not preclude filing a subsequent applicaƟon.

The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situaƟon. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noƟceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggesƟve of fleeing from jusƟce or thwarƟng the course of jusƟce or creaƟng other troubles in the shape of repeaƟng offences or inƟmidaƟng witnesses and the like by the peƟƟoner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the peƟƟoner to avoid the course of jusƟce and must weigh when considering the quesƟon of jail. So also, the heinousness of the crime.

In GudikanƟ Narasimhulu 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 negaƟve criteria necessitaƟng that course. In Prahlad Singh BhaƟ 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 consideraƟons. In Dataram Singh v State of UƩar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is enƟrely within the discreƟon of the judge hearing the maƩer and though that discreƟon is unfeƩered, it must be exercised judiciously, compassionately, and in a humane manner.

not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

13.

The possibility of the accused influencing the invesƟgaƟon, tampering with evidence, inƟmidaƟng witnesses, and the likelihood of fleeing jusƟce, can be taken care of by imposing elaboraƟve and stringent condiƟons. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the ConsƟtuƟonal Bench held that unusually, subject to the evidence produced, the Courts can impose restricƟve condiƟons.

14. Without commenƟng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons menƟoned above, the peƟƟoner makes a case for bail, subject to the following terms and condiƟons, which shall be over and above and irrespecƟve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 15.

In Mahidul Sheikh v. State of Haryana, Neutral CitaƟon No: 2022:PHHC:003277, [ Para 53], [Law Finder Doc Id # 1933969], this Court observed, [53]. The pragmaƟc approach is that while granƟng bail with sureƟes, the "Court" and the "ArresƟng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or creaƟng a lien over his bank account. The accused should also have a further opƟon to switch between the modes. The opƟon lies with the accused to choose between the sureƟes and deposits and not with the Court or the arresƟng officer. 16.

Given above, provided the peƟƟoner is not required in any other case, the peƟƟoner shall be released on bail in the FIR capƟoned above, in the following terms: (a). PeƟƟoner 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 saƟsfacƟon of the concerned court, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accepƟng the surety, the concerned court must saƟsfy that if the accused fails to appear in court, then such surety can produce the accused before the court.

OR (b) PeƟƟoner to hand over to the concerned court a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automaƟc renewal of the principal and the interest reverƟng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district. Said fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the peƟƟoner's account.

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

(d). It shall be the total discreƟon of the peƟƟoner to choose between surety bond and fixed deposit. It shall also be open for the peƟƟoner to apply to the InvesƟgator or the concerned court to subsƟtute the fixed deposit with surety bonds and vice-versa. (e). On the reverse page of personal bond, the peƟƟoner shall menƟon her/his permanent address along with the phone number, preferably that number which is linked with the AADHAR, and e-mail (if any). In case of any change in the above parƟculars, the peƟƟoner shall immediately and not later than 30 days from such modificaƟon, inƟmate about the change to the concerned police staƟon and the concerned court.

(f). The peƟƟoner is to also execute a bond for aƩendance in the concerned court(s) as and when asked to do so. The presentaƟon of the personal bond shall be deemed acceptance of the declaraƟons made in the bail peƟƟon and all other sƟpulaƟons, terms, and condiƟons of secƟon 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.

17.

The peƟƟoner 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.

Within fiŌeen days of release from prison, the peƟƟoner shall procure a smartphone and inform its IMEI number and other details to the SHO/I.O. of the Police staƟon menƟoned above. The peƟƟoner shall always keep the phone locaƟon/GPS on the "ON" mode. Whenever the InvesƟgaƟng officer asks to share the locaƟon, the peƟƟoner shall immediately do so. The peƟƟoner shall neither clear the locaƟon history, WhatsApp chats, call logs nor format the phone without permission of the concerned SHO/I.O. This condiƟon shall conƟnue Ɵll the compleƟon of the trial or closure of case, whichever is earlier. If the peƟƟoners fail to comply with this condiƟon, then on this ground alone. In that case, the bail might be canceled, and the complainant may file any such applicaƟon for the cancellaƟon of bail, and State shall file the said applicaƟon.

19.

Given the nature of the allegaƟons and the other circumstances peculiar to this case, the peƟƟoner shall surrender all weapons, firearms, ammuniƟon, if any, along with the arms license to the concerned authority within fiŌeen days from release from prison and inform the InvesƟgator about the compliance. However, subject to the Indian Arms Act, 1959, the peƟƟoner shall be enƟtled to renew and take it back in case of acquiƩal in this case, provided otherwise permissible in the concerned rules.

20.

During the trial's pendency, if the peƟƟoner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condiƟon as sƟpulated in this order, it shall always be permissible to the respondent to apply for cancellaƟon of this bail. It shall further be open for any invesƟgaƟng agency to bring it to the noƟce of the Court seized of the subsequent applicaƟon that the accused was earlier cauƟoned not to indulge in criminal acƟviƟes. Otherwise, the bail bonds shall remain in force throughout the trial and aŌer that in SecƟon 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condiƟons. 21.

The condiƟons menƟoned above imposed by this court are to endeavour that the accused does not repeat the offence, to provide him an opportunity to reform, and to ensure the safety of the society. In Mohammed Zubair v. State of NCT of Delhi, Writ PeƟƟon (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condiƟons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proporƟonal to the purpose of imposing them. The courts while imposing bail condiƟons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condiƟons that would result in the deprivaƟon of rights and liberƟes must be eschewed."

22.

In return for the protecƟon from further incarceraƟon at this stage, the Court believes that the accused shall also reciprocate through desirable behaviour. If the peƟƟoner again indulges in drugs, then while considering grant of bail in such cases, the concerned Courts may keep it as a factor that this Court had granted a final opportunity to the peƟƟoner to med his ways.

23.

Any Advocate for the peƟƟoner and the Officer in whose presence the peƟƟoner puts signatures on personal bonds shall explain all condiƟons of this bail order in any language that the peƟƟoner understands.

24.

If the peƟƟoner finds bond amount beyond social and financial reach, it may be brought to the noƟce of this Court for appropriate reducƟon. Further, if the peƟƟoner finds bail condiƟon(s) as violaƟng fundamental, human, or other rights, or causing difficulty due to any situaƟon, then for modificaƟon of such term(s), the peƟƟoner may file a reasoned applicaƟon before this Court, and aŌer 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 condiƟon.

25. This order does not, in any manner, limit or restrict the rights of the Police or the invesƟgaƟng agency from further invesƟgaƟon as per law.

26.

In case the InvesƟgator/Officer-In-Charge of the concerned Police StaƟon arraigns another secƟon of any penal offence in this FIR, and if the new secƟon prescribes maximum sentence which is not greater than the secƟons menƟoned above, then this bail order shall be deemed to have also been passed for the newly added secƟon(s). However, suppose the newly inserted secƟons prescribe a sentence exceeding the maximum sentence prescribed in the secƟons menƟoned above, then, in that case, the InvesƟgator/Officer-In-Charge shall give the peƟƟoner noƟce of a minimum of seven days providing an opportunity to avail the remedies available in law.

27. Any observaƟon made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. 28.

There would be no need for a cerƟfied copy of this order for furnishing bonds, and any Advocate for the PeƟƟoner can download this order along with case status from the official web page of this Court and aƩest it to be a true copy. In case the aƩesƟng officer wants to verify the authenƟcity, such an officer can also verify its authenƟcity and may download and use the downloaded copy for aƩesƟng bonds. PeƟƟon allowed in aforesaid terms. All pending applicaƟons, if any, stand disposed. (ANOOP CHITKARA) JUDGE 17.05.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.