CRMPM/2277/2020 of PURSHOTAM RAM Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

Cr.MP(M) No.2277 of 2020

Date of Decision : 31st December, 2020

Purshotam RamState of Himachal Pradesh

Versus

...Petitioner.

...Respondent.

Coram:

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

NoWhether approved for reporting?[1]

For the petitioner : Mr. G.R. Palsra, Advocate. For the respondent :Mr. Nand Lal Thakur, Addl. A.G. and Mr. Ram Lal Thakur,Asstt. A.G., for the State.

COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

Anoop Chitkara, Judge (oral)

For cultivating plants of opium on 0-0-10 bighas of land, the petitioner nowapprehending imminent arrest on being arraigned as an accused, has come up underSection 438 CrPC, seeking anticipatory bail.

2. Based on the complaint of complainant, the Police registered FIR No.86 of 2020,dated 19.4.2020, under Sections, 8, 18 of the Narcotic Drugs and PsychotropicSubstances Act, 1985 (NDPS Act), in Police Station, Aut, District Mandi, HimachalPradesh, disclosing cognizable and non-bailable offences.

3. The petitioner's criminal history relating to the offences prescribing sentence ofgreater than seven years of imprisonment or when on conviction, the sentence Whether reporters of Local Papers may be allowed to see the judgment?

imposed was more than three years: The contents of the petition and the status reportdo not reveal any criminal history.

4. Briefly, the allegations against the petitioner are that on 19.4.2020, theInvestigator who was patrolling in the area of Nau (Piplidhar), on an information thatthere is cultivation of Opium plants, found plantation of the same on 0-0-10 Bighas ofland, which was in the name of one Manni Devi, but was in cultivatory possession ofPurshotam, the present petitioner. After this, the Investigator allegedly complied withthe provisions of NDPS Act and reached the said fields, where they found total 8.782plants of opium. The chemical examiner had tested such plants to be opium.

5. The Counsel for the petitioner seeks bail and contends that the petitioner isinnocent and has been falsely implicated.

6. The contention on behalf of the State is that if this Court grants bail, such ordermust be subject to conditions, especially of not repeating the criminal activities.

ANALYSIS AND REASONING:

7. Section 2 (vii-a) of the NDPS Act defines commercial quantity asthe quantity greater than the quantity specified in the schedule. S. 2 (xxiii-a)defines a small quantity as the quantity less than the quantity specified in thetable of the NDPS Act. The remaining quantity falls in an undefined category,which is now generally called as intermediate quantity. All Sections in the NDPSAct, which specify an offense, also mention that minimum and maximumsentence, depending upon the quantity of the substance. Commercial quantitymandates minimum sentence of ten years of imprisonment and a minimum fineof Rupees One hundred thousand, and bail is subject to the riders mandated inS. 37 of NDPS Act.

8. The contraband involved prima facie is not a commercialquantity. As such, the rigors of Section 37 of the NDPS Act shall not apply in thepresent case. Resultantly, the present case is similar to other instances of thegrant of bail in a penal offence.

9. In intermediate quantity the rigors of the provisions of Section37 may not be justified- (Sami Ullaha v. Superintendent Narcotic ControlBureau, (2008) 16 SCC 471). In the present case, the quantity of substanceseized is less than the commercial quantity. Therefore, the bail applicationstands on different parameters and is similar to bail petitions under regularstatutes.

10. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2)SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the baildecision must enter the cumulative effect of the variety of circumstancesjustifying 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 SupremeCourt held that the persons accused of non-bailable offences are entitled tobail, if the Court concerned concludes that the prosecution has failed toestablish a prima facie case against him, or despite the existence of a primafacie case, the Court records reasons for its satisfaction for the need to releasesuch persons on bail, in the given fact situations. The rejection of bail does notpreclude filing a subsequent application, and the Courts can release on bail,provided the circumstances then prevailing requires, and a change in the factsituation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 &3), Supreme Court noticeably illustrated that the basic rule may perhaps betersely put as bail, not jail, except where there are circumstances suggestive offleeing from justice or thwarting the course of justice or creating other troublesin the shape of repeating offences or intimidating witnesses and the like by thepetitioner who seeks enlargement on bail from the court. It is true that thegravity of the offence involved is likely to induce the petitioner to avoid thecourse of justice and must weigh with us when considering the question of jail.So also the heinousness of the crime. In Gudikanti Narasimhulu v. PublicProsecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16),Supreme Court in Para 16, held that the delicate light of the law favours releaseDataramunless countered by the negative criteria necessitating that course. In Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judgehearing the matter and though that discretion is unfettered, it must beexercised judiciously and in a humane manner and compassionately. Also,conditions for the grant of bail ought not to be so strict as to be incapable ofcompliance, thereby making the grant of bail illusory. 11.Pre-trial incarceration needs justification depending upon theoffense's heinous nature, terms of the sentence prescribed in the statute forsuch a crime, probability of the accused fleeing from justice, hampering theinvestigation, criminal history of the accused, and doing away with the victim(s)and witnesses. The Court is under an obligation to maintain a balance betweenall stakeholders and safeguard the interests of the victim, accused, society, andState. However, while deciding bail applications, the Courts should discussevidence relevant only for determining bail. The difference in the order of bailand final judgment is similar to a sketch and a painting. However, some sketchesare in detail and paintings with a few strokes.

12. The FIR pertains to dated 19.4.2020 and the quantity involved is intermediate.The petitioner has no criminal history.

13. An analysis of the evidence does not justify incarceration of theaccused, nor is it going to achieve any significant purpose, making out a case forbail.

14. The possibility of the accused influencing the course of theinvestigation, tampering with evidence, intimidating witnesses, and thelikelihood of fleeing justice, can be taken care of by imposing elaborativeconditions and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para92, the Constitutional bench held that unusually, subject to the evidenceproduced, the Courts can impose restrictive conditions.

15. Given the above reasoning, the Court is granting bail to thepetitioner, subject to the imposition of following stringent conditions, whichshall be over and above, and irrespective of the contents of the form of bailbonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed, and in the event of arrest the petitioner shall be released on bail in the FIRmentioned above, on his furnishing a personal bond of INR 10,000/, (INR Tenthousand only), with one surety for INR 5,000 (INR Five thousand only), to thesatisfaction of the Investigator/ SHO of the concerned Police Station. Thefurnishing of bail bonds shall be deemed acceptance of all stipulations, terms,and conditions of this bail order:

a)The Attesting officer shall mention on the reverse page of personal bonds,the permanent address of the petitioner along with the phone number(s),WhatsApp number (if any), email (if any), and details of personal bank account(s)(if available).

b)The petitioner shall join investigation as and when called by theInvestigating officer or any superior officer. Whenever the investigation takesplace within the boundaries of the Police Station or the Police Post, then theThepetitioner shall not be called before 8 AM and shall be let off before 5 PM. petitioner shall not be subjected to third-degree methods, indecent language,inhuman treatment, etc.

c)The petitioner shall join and cooperate in the investigation, and failure todo so shall entitle the prosecution to seek cancellation of the anticipatory bailgranted by the present order. (Kala Ram v. State of Punjab, 2018 (11) SCC 350).d)The petitioner shall not influence, browbeat, pressurize, make anyinducement, threat, or promise, directly or indirectly, to the witnesses, the Policeofficials, or any other person acquainted with the facts of the case, to dissuadethem from disclosing such facts to the Police, or the Court, or to tamper with theevidence.

e)Once the trial begins, the appellant shall not in any manner try to delay thetrial. The petitioner undertakes to appear before the concerned Court, on theissuance of summons/warrants by such Court. The petitioner shall attend thetrial on each date, unless exempted.

f)There shall be a presumption of proper service to the petitioner about thedate of hearing in the concerned Court, even if it takes place through SMS/WhatsApp message/ E-Mail/ or any other similar medium, by the Court.

g)In the first instance, the Court shall issue summons and may inform thePetitioner about such summons through SMS/ WhatsApp message/ E-Mail.

h)In case the petitioner fails to appear before the Court on the specified date,then the concerned Court may issue bailable warrants, and to enable the accusedto know the date, the Court may, if it so desires, also inform the petitioner aboutsuch Bailable warrants through SMS/ WhatsApp message/ E-Mail.

i)Finally, if the petitioner still fails to put in an appearance, then theconcerned Court may issue Non-Bailable warrants to procure the petitioner'spresence and send the petitioner to the Judicial custody for a period for whichthe concerned Court may deem fit and proper.

j)In case of Non-appearance, then irrespective of the contents of the bailbonds, the petitioner undertakes to pay all the expenditure (only the principalamount without interest), that the State might incur to produce him before suchCourt, provided such amount exceeds the amount recoverable after forfeiture ofthe bail bonds, and also subject to the provisions of Sections 446 & 446-A ofCrPC. The petitioner's failure to reimburse the State shall entitle the trial Court toorder the transfer of money from the bank account(s) of the petitioner. However,this recovery is subject to the condition that the expenditure incurred must bespent to trace the petitioner and it relates to the exercise undertaken solely toarrest the petitioner in that FIR, and during that voyage, the Police had not gonefor any other purpose/function what so ever.

k)The petitioner shall intimate about the change of residential address andchange of phone numbers, WhatsApp number, e-mail accounts, within thirtydays from such modification, to the police station of this FIR, and the concernedCourt, if such stage arises.

l)The petitioner shall abstain from all criminal activities. If done, then whileconsidering bail in the fresh FIR, the Court shall take into account that evenearlier, the Court had cautioned the accused not to do so.

m)During the trial's pendency, if the petitioner repeats the offence or commitsany offence where the sentence prescribed is seven years or more, then the Statemay move an appropriate application for cancellation of this bail.

n)In case of violation of any of the conditions as stipulated in this order, theState/Public Prosecutor may apply for cancellation of bail of the petitioner.Otherwise, the bail bonds shall continue to remain in force throughout the trialfollowing the mandate of the Constitutional Bench in Sushila Aggarwal, (2020) 5SCC 1, Para 92, wherein the Constitutional bench held that anticipatory bail cancontinue until the end of the trial; however, the Courts can limit the bail period'stenure if unique or peculiar features require.

16. The learned Counsel representing the accused and the Officer inwhose presence the petitioner puts signatures on personal bonds shall explainall conditions of this bail order to the petitioner, in vernacular and if notfeasible, in Hindi or English.

17. In case the petitioner finds the bail condition(s) as violatingfundamental, human, or other rights, or causing difficulty due to any situation,then for modification of such term(s), the petitioner may file a reasonedapplication before this Court, and after taking cognizance, even before theCourt taking cognizance or the trial Court, as the case may be, and such Courtshall also be competent to modify or delete any condition.

18. This order does not, in any manner, limit or restrict the rights ofthe Police or the investigating agency, from further investigation in accordancewith law.

19. The present bail order is only for the FIR mentioned above. Itshall not be a blanket order of bail in any other case(s) registered against thepetitioner.

20. Any observation made hereinabove is neither an expression ofopinion on the merits of the case, nor shall the trial Court advert to thesecomments.

21. The Investigating Officer attesting the bonds shall not insist uponthe certified copy of this order and shall download the same from the websiteof this Court, or accept a copy attested by an Advocate, which shall be sufficientfor the record. The Court Master shall handover an authenticated copy of thisorder to the Counsel for the Petitioner and the Learned Advocate General ifthey ask for the same.

22. In return for the protection from incarceration, the Court believes that theaccused shall also reciprocate through desirable behavior.

The petition stands allowed in the terms mentioned above. All pendingstand closed.applications, if any, Copy Dast.

(Anoop Chitkara),Judge.