Allowed

Sunny Alias Litha Alias Nitha v. State of Hp and Ors.

Himachal Pradesh HC6 Jul 2021CRMPM/1221/2021

Case brief

AI extract

What is this about?

The High Court granted bail to a habitual narcotics offender charged with possessing 7.13 grams of heroin. The Court held that since the quantity was intermediate rather than commercial, Section 37 of the NDPS Act did not apply. Bail was allowed subject to stringent conditions including GPS tracking and a choice between surety bonds or fixed deposits.

What did the court decide?

Petitioner released on bail upon furnishing a personal bond of Rs. 10,000 and two sureties of Rs. 25,000 each, or alternatively a fixed deposit of Rs. 10,000, subject to strict conditions including GP

Sunny Alias Litha Alias Nitha Vs State of Hp and… — Narcotics (NDPS) | Himachal Pradesh HC (2021)

¶1

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

Cr.MP(M) No.1221 of 2021 Reserved on: July 5, 2021 Date of Decision: July 6, 2021

¶4

Sunny @ Litha

¶5

...Petitioner. Versus State of H.P. ...Respondent.

¶6

Coram:

¶7

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

¶8

Whether approved for reporting?¹ NO

¶9

For the petitioner: Mr. L.S. Lakhanpal and Mr. Abhyendra Gupta, Advocates.

¶10

For the respondent: Mr. Nand Lal Thakur Addlitional Advocate General, Mr. Ram Lal Thakur, Assistant Advocate General and Mr. Rajat Chauhan, Law Officer .

¶11

THROUGH VIDEO CONFERENCE

¶12

FIR No.	Dated	Police Station	Sections
182 of	29.11.2020	Damtal, District Kangra, H.P.	21-61-85
2020

¶13

Anoop Chitkara, Judge

¶14

A habitual offender, under Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), is once again in prison w.e.f. 30.11.2020, for possessing 7.13 grams of Heroin, and has now come up before this Court under Section 439 of CrPC, seeking bail, on the grounds that the quantity of contraband allegedly seized is

¶15

1 Whether reporters of Local Papers may be allowed to see the judgment?

¶16

¶17

intermediate quantity and does not restrict bail, because the quantity greater than 250 grams of Heroin falls in the category of the commercial quantity; hence the restrictions for bail imposed in S. 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.

¶18

2. Earlier, the petitioner had filed the following bail petitions:

¶19

(a) Bail Application No.05-D/XXII/2021 before learned Special Judge-II, Kangra at Dharamshala, District Kangra, H.P., which was dismissed on 7.1.2021.

¶20

(b) Cr.MP(M) No.406 of 2021 before this Court, which was dismissed as withdrawn, on 30.3.2021.

¶21

3. Para 16 of the bail petition and status report mentions the following criminal history:

¶22

a) FIR No.299/2012 dated 19.9.2012 under Sections 15-61-85 of ND&PS Act;

¶23

b) FIR No.30/2015 dated 14.6.2015, under Sections 21-61-85 of ND&PS Act, registered at Police Station, Pathankot;

¶24

c) FIR No.153/ 2016 dated 11.7.20219, under Sections 21-61-85; and

¶25

d) FIR No.70/2019 dated 24.7.2019, under Sections 341, 147, 149, 342, 353, 323, 511, 186 and 225 of the IPC.

¶26

4. Briefly, the allegations against the petitioner are that on 29.11.2020, the police officials of the above mentioned Police Station were patrolling in their jurisdiction. When they reached a link road towards NH-44 near Damtal then they noticed one car parked on the roadside. Two persons were sitting in the car and its cabin light was on. The Police officials inquired about parking of the said vehicle at an odd hour. Two persons were also passing through, who on seeing the Police also stopped. In their presence, the police officials asked the car driver to show the documents. However, he started making excuses. In the meanwhile, the driver started concealing something in the dash board. The Police officials removed his hand and noticed on transparent polythene packet. On checking it looked like Heroin. After checking the same from Drug Deduction Kit, it tested positive for Heroin. On weighing, it weighed 7.13 grams. Based on these allegations, the Police registered the FIR mentioned above and arrested both the accused persons.

¶27

¶28

5. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

¶29

6. On the contrary, the contention on behalf of the State is that the accused is a proven habitual offender, and given his past conduct; he is likely to repeat the offence. He further insists that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

¶30

REASONING :

¶31

7. The petitioner is in jail in another FIR under ND&PS Act and in the present case, he was arrested on 30.11.2020. The quantity of Heroin in the present FIR is a pinch above small quantity. As such, one more opportunity can be afforded to the petitioner to mend his ways.

¶32

8. In Sami Ullaha v Superintendent Narcotic Control Bureau , (2008) 16 SCC 471, the Hon’ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified. In Sunny Kapoor v State of HP , CrMPM 2168 of 2020, (Para 15), this Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

¶33

9. 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.

¶34

10. In Sunny Kapoor v State of HP , CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. While considering each bail petition of the accused with a criminal history,

¶35

¶36

it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.

¶37

11. Without commenting on the case's merits, given the investigation stage, the period of incarceration already undergone, and the circumstances peculiar to this case, the petitioner makes a case for release on bail.

¶38

12. 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.

¶39

13. 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.

¶40

14. 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.

¶41

15. In the alternative, the petitioner may furnish a personal bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district.

¶42

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.

¶43

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

¶44

c) If such a fixed deposit is made in physical form, i.e., on paper, then the

¶45

¶46

original receipt shall be handed over to the concerned Court.

¶47

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.

¶48

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.

¶49

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.

¶50

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

¶51

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.

¶52

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

¶53

¶54

number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

¶55

c) 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.

¶56

d) 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.

¶57

e) 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]:

¶58

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

¶59

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.

¶60

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.

¶61

17. Given the gravity of accusations and the heinous nature of the offence, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within 30 days from today and

¶62

¶63

inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case.

¶64

18. The petitioner shall, within thirty days of his release from prison , procure a smart phone, 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.

¶65

19. 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 437A of the CrPC.

¶66

20. 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.

¶67

21. 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.

¶68

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

¶69

23. 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.

¶70

¶71

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

¶72

25. 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.

¶73

In the facts and circumstances peculiar to this case, the petition is allowed in

¶74

the terms mentioned above.

¶75

Copy Dasti.

¶76

Anoop Chitkara, Judge .

¶77

July 6, 2021 ( ks )

Sunny Alias Litha Alias Nitha v. State of Hp and Ors.

Case brief

What is this about?

What did the court decide?

Sunny Alias Litha Alias Nitha v. State of Hp and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pawan Kumar and Others Vs State of Hp and Another

Karan Begra and Anr. Vs State of Hp and Anr.

Akshat Sharma and Another Vs State of Hp and Another

State Vs Sita Ram

Atul Sen Vs State of Hp

Bhawani Katoch and Others Vs State of Hp and Others