Mohd. Aws Alhendi @ Alhendi Aws @ Aws Raad Nealmah Al-Hendi v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 19.07.2023

Pronounced on: 27.07.2023 Mohd. AWS Alhendi @ Alhendi AWS @ AWS Raad Nealmah Al-Hendi ...PeƟƟoner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Pranshul Dhull, Advocate and Mr. NiƟsh Tanwar, Advocate for the peƟƟoner.

Mr. Manish Bansal, Sr. D.A.G, Haryana.

**** ANOOP CHITKARA, J .

FIR No.

Dated Police StaƟon SecƟons 28.07.2020 Sector-56, Gurugram, 27 (b) (ii) & 28 of the Drugs District Gurugram and CosmeƟcs Act, 1940;

22(c) of the NDPS Act, (7, 14-A of the Foreigners Act, 1946 added later on) (charges framed under SecƟon 22(b), 22(c), 29 of NDPS Act; 18-A, 18(c), 27(b) (ii) and 28 of the Drugs and CosmeƟcs Act and 14 of the Foreigners Act) 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, has come up before this Court under SecƟon 439 CrPC seeking bail. 2.

In paragraph 5 of the bail peƟƟon, the accused declares that he has no criminal antecedents.

3.

PeƟƟoner's counsel prays for bail by imposing any stringent condiƟons and is also voluntarily agreeable to the condiƟons as imposing by this Court. The peƟƟoner contends that the further pre-trial incarceraƟon would cause an irreversible injusƟce to

the peƟƟoner and family.

4.

While opposing the bail, the contenƟon on behalf of the State is that the quanƟty of contraband involved in the case falls in the commercial category. 5.

As per custody cerƟficate, peƟƟoner's custody in the present FIR is 02 years, 11 months and 17 days as on 18.07.2023. Vide order dated 17.05.2023, the co-accused with lesser custody has already been released on bail in CRM-M-54531-2022 by the coordinate Bench of this Court. The peƟƟoner is also first offender and simply because he is not a ciƟzen of India would not mean that he is not enƟtled to bail on the grounds of parity because the sweep of ArƟcle 21 is not confined to ciƟzen of India but extents to residents of India.

REASONING:

6.

As per the custody cerƟficate, the peƟƟoner's total custody is 02 years, 11 months and 17 days. The peƟƟoner indisputably has no criminal antecedents and has already complete pre-trial custody exceeding two years and six months. Thus, he is enƟtled to bail based on Dheeraj Kumar Shukla v. The State of UƩar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be aƩracted only when the three condiƟons are fulfilled, (a).

The custody of more than 2 years and 6 months and the delay was not aƩributable to accused.

(b).

The trial is at an iniƟal stage.

(c) The peƟƟoner is the first offender.

7.

The peƟƟoner fulfills all the three condiƟons and thus, secƟon 37 of NDPS Act would not be aƩracted. 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 v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the ConsƟtuƟonal Bench held that unusually, subject to the evidence produced, the Courts can impose restricƟve condiƟons.

8.

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.

9.

In Madhu Tanwar and Anr. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M-27097-2023, decided on 29-05-2023, this court observed, [10] The exponenƟal growth in technology and arƟficial intelligence has transformed idenƟficaƟon techniques remarkably. Voice, gait, and facial recogniƟon are incredibly sophisƟcated and pervasive. ImpersonaƟon, as we know it tradiƟonally, 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 jusƟce, then in such cases, appropriate condiƟons 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 revoluƟon has just begun, to keep pace with exponenƟal and unimaginable changes the technology has brought to human lives, it is only fiƫng that the dependence of the accused on surety is minimized by giving alternaƟve opƟons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. 10.

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, to 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, 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 peƟƟoner to prepare an account payee demand draŌ favouring concerned Chief Judicial Magistrate for the similar amount.

(c). Such court shall have a lien over the funds 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). 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 of this bail order.

(e). While furnishing personal bond, the peƟƟoners/applicants shall menƟon the following personal idenƟficaƟon details: 1.

Passport number 2.

Mobile number (If available) 3.

E-Mail id (If available) 11.

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.

12.

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.

13.

The condiƟons menƟoned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the society. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], 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."

14.

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.

15.

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.

16. 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. 17.

In return for the protecƟon from incarceraƟon, the Court believes that the accused shall also reciprocate through desirable behavior. 18.

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 27.07.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.