Parvesh Kumar vs State Of H.P

Anoop Chitkara, J

An under-trial prisoner, in custody since 14.05.2020 for possessing commercial quantity of Poppy Husk, has come up before this Court under Section 439 of CrPC, seeking bail.

Earlier, the petitioner had filed the following bail petitions:

(a) Bail application No.149-D/XXII/2020 filed by the petitioner was dismissed by learned Special Judge-II, Kangra, at Dharamshala, on 17.06.2020.

In Para -27 of the bail application, the petitioner declares having no criminal history.

Briefly, the allegations against the petitioner are that on 10.02.2020, Police Station, Damtal, received Rukka from ASI Kuldeep Chand, informing about recovery of contraband. Based on the said information, police registered the above FIR to the following effect:-

(i) That on 10.02.2020, ASI Kuldeep Chand and other police officials were patrolling in their official vehicle to control law and order and to detect

crime. When police officials reached at a place known as Mohtli Ramp, then at around 2:30 p.m., investigator received a secret information that Smt. Asha Devi (A-1) is indulged in sale of poppy husk from her house. The investigator recorded such information under Section 42 of NDPS Act and forwarded the copy of the same to SDPO.

(ii) After that, the investigator arranged for independent witnesses and proceeded towards the house of Asha Devi. Alongwith independent witnesses, namely, Sagar Singh and Suresh Kumar, police officials reached at the house of Asha Devi.

(iii) In the house of Asha Devi, she was not present, however, her two sons aged 14 and 12 years were in the house. They told the police that their mother, Asha Devi, was in the house till some time ago. They further told the investigator that their father is in jail for the last one year. After waiting for an hour, investigator proceeded to conduct the search of the house in the presence of independent witnesses. When police officials checked the store of the house, then they recovered fourteen sacks and one bag. On opening the bag, police recovered one country made pistol (katta) and ten live cartridges. Thereafter, on opening the sacks, police recovered poppy husk, which on weighing, found to be 350.7 Kg (3.5 quintal)

(iv) After that the police sealed all the bags in the same condition and after affixing the seals made a seizure memo. The investigator also did sealing of pistol in the similar manner.

(v) On 06.05.2020, the investigator was able to arrest the accused Asha Devi, that is, after about four months of the recovery.

(vi) During interrogation of Asha Devi, police came to know about the involvement of her brother-in-law, Rajinder Kumar (A-2). The investigator collected call details and found involvement of her brother-in-law, Rajinder Kumar (A-2). After that, police arrested Rajinder Kumar (A-2) on

10.05.2020.

(vii) Further interrogation of the accused revealed the involvement of Parvesh Kumar (A-3), petitioner herein, and Rajat Kumar (A-4). Subsequently, the investigator arrested both Parvesh Kumar and Rajat Kumar.

(viii) During interrogation, both Parvesh Kumar and Rajat Kumar, who are related to each other, disclosed that they had purchased poppy husk and country made pistol from a truck driver. The said truck driver belongs to Jammu and was going towards Damtal. After that they had brought the poppy husk to the house of Asha Devi (A-1) and had offered her money to keep the same in her house.

(ix) The Ballistic expert found the country made pistol to have been used and in working condition. Similarly, FSL detected the recovered contraband as poppy straw. Based on this investigation, police file report under Section 173 of Cr.P.C.

Ld. counsel for the bail petitioner submits that the evidence collected against the petitioner is legally inadmissible. He also places reliance upon the decisions of this Court in Budhi Singh v. State of H.P., CrMPM 595 of 2020; Rehmat Ali v. State of Himachal Pradesh, Cr.MP(M) No.203 of 2019, Naveen Bura v. State of HP, 2018 Law Suit (HP) 478, Thakur Dass v. State of H.P., CrMPM 167 of 2010; Stynder Singh v. State of Himachal Pradesh, 2010(1) SimLC 490, and Nisar Ahmed Thakkar v. State of H.P., CrMPM 672 of 2008.

Arguments on behalf of the State are that the Police have collected sufficient evidence by tracing frequent calls made by the bail petitioner, the main accused, and the seller of contraband, which prima facie points out towards his involvement. He also contended that the accused has yet not discharged the presumption under S. 35 of NDPS Act, and further that the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act do not entitle the accused for bail. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions.

The recovery took place on 10.02.2020 from the house of Asha Devi (A-1) and police arrested her on 06.05.2020, that is, after a gap of around four months. Subsequently, on 10.05.2020, police arrested Rajinder Kumar (A-2), that is, after four months. It is the statements of these two accused made to the police, which led to arrest of Parvesh Kumar (A-3) and Rajat Kumar (A-4). Needless to say that the statements made before the police are not legal evidence given the bar under Section 24 and 25 of the Indian Evidence Act and similarly Section 67 of the NDPS Act is also no more legally valid as far as validity of statement made to the police officials or other investigator is concerned. Thus, what is to be seen is the evidence, which connects Parvesh (A-3) and Rajat (A-4) with Asha Devi (A-1) and Rajinder Kumar (A-2).

Mr. Nand Lal Thakur, learned Additional Advocate General, has handed over the call details of one Joginder Singh. Such Joginder Singh is neither accused nor does he find any mention. Learned Additional Advocate General has also handed over call details of Rajinder Kumar (A-2) as well as that of the present bail petitioner However, he has failed to point out any conversation between the phone numbers of Rajinder Kumar (A-2) and the petitioner. After taking instructions from the police officials, he has submitted that, in fact, the petitioner, Parvesh Kumar (A-3), and Rajat Kumar (A-

4) were in the same tower location on 10.02.2020, in which Rajinder Kumar (A-2) was also present. With only this much of evidence and that too when the investigator could not point out a single call between Rajinder Kumar (A-2) and the petitioner, Parvesh Kumar (A-3), for the purpose of bail, the petitioner is able to satisfy the rigors of Section 37 of the NDPS Act. Further, it is clarified that appreciation of this evidence and any further evidence, which may be collected, would be open for the trial Court to appreciate and simply because this Court is giving bail due to absence of sufficient evidence, nowhere implies that it would be taken against the prosecution during trial. Needless to say that this scrutiny is only for the purpose of bail and for nothing else.

The decision of this Court in Satinder Kumar v. State of H.P., Cr.MP(M) No. 391 of 2020, decided on 4th Aug 2020, covers the proposition of law involved in this case, wherein this Court has held that Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The ratio of the decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS Act.

The contention that confessional statement of the co-accused is hit by S. 25 & 26 of Indian Evidence Act, is well founded. Ld. Additional Advocate General has failed to point out towards any incriminating evidence against the accused except the allegations of co-accused.

S. 37 of the NDPS Act implies that the accused should satisfy its twin conditions and come out clean. The confessional statement of one of the accused is legally insufficient to deny bail to the other accused, in the absence of any other incriminating evidence or allegations. Thus, the petitioner has satisfied the first condition. To take care of the second condition, the petitioner pleaded in Para 3(ix) of bail that he has no criminal history. The State also does not dispute it. To take care of the second condition, stringent conditions would suffice.

In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail. Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons mentioned above, and keeping in view the nature of allegations, petitioner has made out a case for grant of bail.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

Given the above reasoning, coupled with the peculiar facts and circumstances of the case, the Court is granting bail to the petitioner, subject to strict 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.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of ""Chief Judicial Magistrate, District Kangra at Dharamshala, H.P.,

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., Bank of America, Chase, HSBC, City Bank, HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall deposit his passport, if not already seized by the Police.

(d) The petitioner shall, within thirty days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the “ON” mode. Before replacing his mobile phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating officer asks him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone without permission of the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned

SHO/I.O.

e) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity, then it shall be open for the State to apply for cancellation of this bail order.

f) 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 of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

g) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

f) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, the State may move an appropriate application before this Court, seeking cancellation of this bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.

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 vernacular and if not feasible, in Hindi.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after 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 condition.

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

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.

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

There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

Copy Dasti.