Sanjay Khan vs State Of Himachal Pradesh

Anoop Chitkara, J

This petition coming on for orders this day, the Court passed the following:

FIR No.

Dated

Police Station

Sections

145/20

23.12.2020

Fatehpur, District Kangra

22-61-85 of NDPS Act

An under-trial prisoner, in custody since 23.12.2020, for possessing commercial quantity of Tramadol Hydrochloride capsules, 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.214-D/XXII/2021, decided on 15.09.2021, by learned Special Judge-II, Kangra at Dharamshala, H.P.

The bail petition is silent about criminal history, however, Mr. Arun Sehgal, Ld. Counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner are that on 23rd December 2020, the police officials were on patrolling in their jurisdiction to detect crime. At about 4.00 p.m., when they reached at Khatiar, bazaar, they started patrolling on foot. The police officials noticed that two person were walking and one of them had put a rucksack on his back. On seeing the police, they stopped and became perplexed. This arose suspicion in the mind of ASI that these persons might be in possession of some contraband. Upon this, he asked the said persons to stop. On inquiry, the person, who was carrying rucksack revealed his name as Narinder Kumar A-1. The person who was with him revealed his name as Sanjay Khan (A-2). They also revealed that they were coming from Baddi. The investigator conveyed his intention to conduct their personal search for the reason that they might be carrying some intoxicating substance. After that the investigator gave option to them under Section 50 of the NDPS Act. However, both the persons opted that their personal search be conducted before a gazetted officer. After that the Dy. S.P., Jawali, was requested to come to the spot. After sometime, the Dy.S.P.-cum-SDPO, Jawali, reached at the spot. The police officials also associated independent witnesses. The police opened the rucksack, which Narinder Kumar (A-1) was carrying on his back. In the central portion of the bag, there was a pocket, which contains another carry-bag. On checking the said carry bag, there was a polythene pouch, which contains capsules of brand SPM-PRX+ WOCKHARDT 1205 in number. The police officials weighed the said capsules and it measured as 739 grams. After that the police conducted the search of Sanjay Khan, however, no intoxicating substance was recovered from him. Subsequently, the police seized the capsules recovered from Narinder Kumar and arrested both the accused. Based on these allegations, the Police registered the FIR mentioned above. During the investigation the police found involvement of one Sandeep Kumar from whom Narinder Kumar had purchased the alleged contraband.

Learned counsel for the bail petitioner submits that the evidence collected against the petitioner is legally inadmissible.

Arguments on behalf of the State is 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.

REASONING:

The decision of this Court in Satinder Kumar v. State of H.P., 2020 SCC OnLine HP 3276, 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.

S. 37 of the NDPS Act implies that the accused should satisfy its twin conditions and come out clean. The scientific test revealed the presence of Tramadol Hydrochloride in the capsules. The psychotropic substance recovered from Narinder Kumar (A-1) measured 722.400 grams of Tramadol Hydrochloride. As per the NDPS Act, the quantity greater than 250 grams of Tramadol is commercial. As such the quantity involved in the present case is commercial quantity. Thus the burden shifts on the petitioner to come out of the rigors of Section 37 of the NDPS Act. The investigation is complete and the police has already filed report under Section 173(2) Cr.P.C. As per the police report, the alleged recovery was from Narinder Kumar and the case of Sanjay Khan is on different footings. The only evidence against him is that they worked together and were present together on the spot from where the police had recovered capsules from the bag, which Narinder Kumar was carrying. It is not the case of the prosecution that Sanjay Khan had asked Narinder Kumar to carry his bag. It is also not the case of the prosecution that the Narinder Kumar had purchased this drug from Sanjay Khan or he had financed this purchase. The recovery was from inside the personal bag of Narinder Kumar (A-1) Thus, petitioner Sanjay Khan, who was simply present with him, had neither any occasion nor any opportunity to check the bag of other person as a routine. In normal course, it is considered neither civilized nor good etiquette. The investigation does not find the past criminal history of Sanjay Khan. Based on the evidence collected by the prosecution, it can safely be said that the petitioner Sanjay Khan has satisfied the rigors of Section 37 of NDPS Act.

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.

Without commenting on the case's merits and the circumstances peculiar to this case, the petitioner makes a case for release on bail.

Given the above reasoning, 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. Ten thousand (INR 10,000/-), and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, 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 a personal bond of Rs. Ten thousand (INR 10,000/-), and handover to the attesting Court, a fixed deposit(s) for Rs. Twenty five only (INR 25,000/-), made in favour of Chief Judicial Magistrate of the concerned district.

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., 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) 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.

d) 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.

The petitioner shall, within thirty days of 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. The petitioner shall keep the phone location/GPS always on the "ON" mode. Whenever the Investigating officer asks to share the location, then the petitioner shall immediately do so. The petitioner shall neither clear the location history, WhatsApp chats, calls nor format the phone without permission of the concerned SHO/I.O.

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, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities. 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.