High Court of Punjab and HaryanaCRM-M/27500/2023disposed of

Shivam @ Shivam Nandal v. Union Of India

2023-05-31Mr. Justice Anoop Chitkara5 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRM-24544 & 24547 of 2023 in/& CRM-M-27500-2023 (O&M) Date of order: 31.05.2023 Shivam @ Shivam Nandal ... Petitioner(s)

Versus

Union of India

...Respondent (s)

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA Present:- Dr. Anmol Rattan Sidhu, Sr. Advocate with Mr. Pratham Sethi, Advocate and Mr. Pranshul Dhull, Advocate for the petitioner(s).

Mr. Jagjot Singh Lall, Deputy Solicitor General of India for respondent-NCB.

*** ANOOP CHITKARA, J.

ComplaintDated Police Station Sections NCB Crime 23.8.2022 NCB Chandigarh 8, 20, 25, 28, 29, 60 and 62 NDPS Act CRM-24544 of 2023:

The application is allowed, as prayed.

CRM-M-27500-2023 (O&M):

The petitioner incarcerated for violating the above-mentioned provisions per the FIR captioned above, has come up before this Court under Section 439 CrPC seeking bail. The petitioner has also filed CRM-24547 of 2023 seeking ad-interim bail during the pendency of the main case, on the ground that his wife had undergone surgery and she is suffering from post-surgical complications. 2.

Counsel for the petitioner has submitted that the denial of interim bail would cause an irreversible injustice to the petitioner and family. He has no objection to imposing any stringent conditions in case of grant bail.

Paragraphs 3 and 4 of the CRM-24547-2023 reads as follows:- "3.

That the wife of the petitioner is a known case of "Right Renal Graft Calculi" has had undergone her surgery and due to the abovementioned reason, the petitioner was granted ad-interim regular bail vide Annexure P-4. 4.

After the surgery the wife of the petitioner has started experiencing post-surgical complications. The copy of the medical records is annexed herewith as Annexure A-1."

While opposing the interim bail, the State does not dispute the factum of the grounds on which the petitioner is seeking interim bail. REASONING:

After carefully analysing the matter, this court is of the considered opinion that the petitioner is entitled to the interim bail till 14.06.2023, subject to the condition that the petitioner shall not press the main petition at this stage and after surrendering on 14.06.2023, it shall be open for him to file a fresh bail petition under section 439 CrPC on merits.

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 for a limited period, 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.

2022:PHHC:003277, [ Para 53], Law Finder Doc Id # 1933969], this Court observed, [53]. The pragmatic approach is that while granting bail with sureties, the "Court" and the "Arresting 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 creating a lien over his bank account. The accused should also have a further option to switch between the modes. The option lies with the accused to choose between the sureties and deposits and not with the Court or the arresting officer.

Given above, provided the petitioner is not required in any other case, the petitioner shall be released on interim bail till 13.6.2023 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, any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned 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. 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 wellestablished and stable private sector banks. The fixed deposit need not necessarily be made from the petitioner's account.

(c). Such court shall have a lien over the deposit 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). It shall be the total discretion of the petitioner to choose between surety bond and fixed deposit. It shall also be open for the petitioner to apply to the Investigator or the concerned court to substitute the fixed deposit with surety bonds and viceversa. (e). On the reverse page of personal bond, the petitioner shall mention 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 particulars, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change to the concerned police station and the concerned court.

(f). 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 also of this bail order.

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.

10. Immediately on reaching home/venue, the petitioner shall procure a smartphone and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned above. The petitioner shall always keep the phone

location/GPS on the "ON" mode. Whenever the Investigating officer asks to share the location, the petitioner shall immediately do so. The petitioner shall neither clear the location history, WhatsApp chats, call logs nor format the phone without permission of the concerned SHO/I.O. This condition shall continue till surrender.

11. In return for the limited protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior. It is clarified that in case the petitioner does not mend his ways and repeats the offence or indulge in criminal behaviour during the period of interim bail, then in all future matters, the concerned courts shall keep it as a factor that this court had cautioned the petitioner to reform and live a normal life but did not mend his ways.

12. The conditions mentioned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the witnesses, victim, and their families. In Mohammed Zubair v. State of NCT of Delhi, Writ Petition (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 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."

13. 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.

14. 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.

15. The petitioner shall surrender in prison from where he was released, on or before 14.6.2023 by 11-00 a.m.

16. It is clarified that no further extension of interim bail shall be granted. However, he may apply afresh only after surrender and annexing all record of medical treatment availed by his wife during the period of his interim bail.

17. 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. CRM-24547-2023 stands allowed. The main petition is disposed of with liberty to file a fresh one after surrender. The disposal of the present petition shall not stand in the way of filing and considering the fresh petition. All pending applications, if any, stand disposed.

(ANOOP CHITKARA) JUDGE May 31, 2023 AK Whether speaking/reasoned :

Yes Whether reportable :