Upashu Garg Alias Upanshu Garg v. State Of Punjab And Another

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRM-20345-2023 in/and CRM-M-59326-2022 Date of Decision: 11.05.2023 Upashu Garg @ Upanshu Garg ...PeƟƟoner

Versus

State of Punjab and another

...Respondents

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Ishan Gupta, Advocate for the peƟƟoner.

Mr. Harsimar Singh SiƩa, DAG, Punjab.

Mr. Rajeev Anand, Advocate for respondent No. 2-CBI. **** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 22.02.2020 Sadar Dhuri, 22 of NDPS Act (29 of NDPS District Sangrur Act added later on) CRM-20345-2023 This is an applicaƟon for preponing the main peƟƟon, which is pending for 13.07.2023.

For the reasons menƟoned in the applicaƟon, the same is allowed and the main peƟƟon is taken up for hearing on board today itself. CRM-M-59326-2022 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 10000 tablets of Colovidol 100 SR; 5250 tablets containing EƟzolam; 1600 tablets containing Lorazepam; 1800 tablets of Chlordiazepoxide; and 850 tablets containing EƟzolam had come up before this Court under SecƟon 439 CrPC seeking bail.

2.

In end note 2 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. 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. REASONING:

5.

As per the peƟƟoner and also as per the custody cerƟficate, the peƟƟoner's total custody exceeds two years and six months. 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).

Trial is at an iniƟal stage.

(c) The peƟƟoner is the first offender.

6.

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, (2020) 5 SCC 1, Para 92, the ConsƟtuƟonal Bench held that unusually, subject to the evidence produced, the Courts can impose restricƟve condiƟons. 7.

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. 8.

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. 9.

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.

10.

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.

11.

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.

12.

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. 13.

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. 14.

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, 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." 15.

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.

16.

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.

17. 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. 18.

In return for the protecƟon from incarceraƟon, the Court believes that the accused shall also reciprocate through desirable behavior. 19.

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 11.05.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.