Allowed

Balkar Singh @ Bali v. State of Punjab

Punjab & Haryana HC17 Nov 2023CRM-M/35596/2023

Case brief

AI extract

What is this about?

High Court of Punjab and Haryana granted bail to petitioner Balkar Singh charged under NDPS Act. Court held Section 37 NDPS Act inapplicable as custody exceeded two years and six months. Bail granted with conditions restricting prepaid SIMs to one, surrendering firearms, and forfeiting bond funds.

What did the court decide?

Petitioner released on bail with conditions including personal bond, one surety or fixed deposit, surrender of weapons, and restriction to one prepaid mobile SIM.

Balkar Singh @ Bali Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2023)

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CRM-M-35596-2023

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-35596-2023

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Reserved on: 15.11.2023 Pronounced on: 17.11.2023

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Balkar Singh @ Bali ...Petitioner

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Versus

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State of Punjab …Respondent

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CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Mr. Karanbir Singh, Advocate for the petitioner.

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Mr. Ravinder Singh, AAG, Punjab.

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ANOOP CHITKARA, J.

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FIR No.	Dated	Police Station	Sections
313	17.11.2020	Shahkot, District	21(C) , 29, 61, 85 of NDPS
		Jalandhar	Act, Sections 7(2)/13 of
			Prevention of Corruption Act
			and 25/54/59 of Arms Act

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The petitioner incarcerated for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) as per the FIR captioned above, has come up before this Court under Section 439 CrPC seeking bail.

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In paragraph 14 of the bail petition, the accused declares that he has no criminal antecedents.

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Petitioner's counsel prays for bail by imposing any stringent conditions and states that they would have no objection to the conditions, i.e., surrender of weapons, declaration of assets by the petitioner and their spouse, and are also voluntarily agreeable to the condition that till the conclusion of the trial, the petitioner shall keep only one mobile number, which is mentioned in AADHAR card, if any, and within fifteen days undertakes to disconnect all other mobile numbers.The petitioner contends that the further pre-trial incarceration would cause an irreversible injustice to the petitioner

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and family.

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CRM-M-35596-2023

While opposing the bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls in the commercial category.

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Prosecution’s case is that on 17.11.2020, Harjinder Pal @ Kala along with three others namely Ranjit Singh, Sanjeev @ Sintu, Krishan Singh @ Daulat was apprehended by the police while they were travelling in a car and 11 kg heroin was recovered from a polythene envelope carried by Ranjit Singh. It is also alleged that Harjinder Pal @ Kala, Sanjeev @ Sintu and Krishan Singh @ Daulat were found in possession of Rs. 2.25 lacs, Rs. 3.10 lacs and Rs. 3.50 lacs of drug money, respectively. In the petition, it is stated that petitioner was not named in the FIR and he was nominated on disclosure statement of Ranjit Singh, in which he stated that Balkar Singh @ Bali is an active member of gang indulged in smuggling.

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REASONING:

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As per the custody certificate dated 13.11.2023, the petitioner's total custody is 02 years, 11 months & 21 days. The petitioner indisputably has no criminal antecedents and has already complete pre-trial custody exceeding two years and six months. Thus, he is entitled to bail based on Dheeraj Kumar Shukla v. The State of Uttar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be attracted only when the three conditions are fulfilled,

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(a). The custody of more than 2 years and 6 months and the delay was not attributable to accused.

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(b). The trial is at an initial stage.

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The petitioner fulfills all the three conditions and thus, section 37 of NDPS Act would not be attracted. 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 v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

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Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following 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.

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CRM-M-35596-2023

In Madhu Tanwar and Anr. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21] , CRM-M-27097-2023, decided on 29-05-2023, this court observed,

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[10] The exponential growth in technology and artificial intelligence has transformed identification techniques remarkably. Voice, gait, and facial recognition are incredibly sophisticated and pervasive. Impersonation, as we know it traditionally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from justice, then in such cases, appropriate conditions can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.

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[21] In this era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes the technology has brought to human lives, it is only fitting that the dependence of the accused on surety is minimized by giving alternative options. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.

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Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above, in the following terms :

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(a). Petitioner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND

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(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the concerned court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned officer/court must satisfy that if the accused fails to appear in court, then such surety can produce the accused before the court.

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(b). Petitioner to hand over to the concerned court a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automatic renewal of the principal and the interest reverting to the linked account, made in favor of the ‘Chief Judicial Magistrate’ of the concerned district, or blocking the aforesaid amount in favour of the concerned ‘Chief Judicial Magistrate’. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be

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permissible for the petitioner to prepare an account payee demand draft favouring concerned Chief Judicial Magistrate for the similar amount. (c). Such court shall have a lien over the funds until the case's closure or discharged by substitution, or up to the expiry of the period mentioned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.

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(d). The petitioner is to also execute a bond for attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail petition and all other stipulations, terms, and conditions of section 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.

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(e). While furnishing personal bond, the petitioner shall mention the following personal identification details:

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1. AADHAR number
2. Passport number, (If available), when the attesting officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)

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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 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.

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Petitioner to comply with their undertaking made in the bail petition, made before this court through counsel as reflected at the beginning of this order. If the petitioner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the victim/complainant may file any such application for the cancellation of bail, and the State shall file the said application.

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The petitioner is directed not to keep more than one prepaid SIM, i.e., one pre-

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paid mobile phone number, till the conclusion of the trial; however, this restriction is

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only on prepaid SIMs [mobile numbers] and not on post-paid connections or landline

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numbers. The petitioner must comply with this condition within fifteen days of release from prison. The concerned DySP shall also direct all the telecom service providers to deactivate all prepaid SIM cards and prepaid mobile numbers issued to the petitioner, except the one that is mentioned as the primary number/ default number linked with the AADHAAR card and further that till the no objection from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the petitioner’s name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the directions of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the petitioner, except the main number/default number linked with AADHAR, by taking such information from the petitioner’s AADHAR details or any other source, for which they shall be legally entitled by this order. This condition shall continue till the completion of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655 ,

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[para 45], while granting bail under Unlawful Activities (Prevention) Act, 2002, Supreme Court had directed imposition of the similar condition, which reads as follows, “(d) Both the appellants shall use only one Mobile Phone each, during the time they remain on bail and shall inform the Investigating Officer of the NIA, their respective mobile numbers.”

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Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and 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, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offence.

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During the trial's pendency, if the petitioner repeats or commits any offence where

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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 remain in force throughout the trial and after that in Section 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of conditions.

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The conditions mentioned 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 , 2022:INSC:735 [Para 28] , Writ Petition (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 conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.”

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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 any language that the petitioner understands.

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If the petitioner finds bond amount beyond social and financial reach, it may be brought to the notice of this Court for appropriate reduction. Further, if the petitioner finds 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.

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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.

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

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There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer ANJU RANI wants to verify the authenticity, such an officer can also verify its authenticity and may 2023.11.22 16:54 I attest to the accuracy and integrity of this document 6

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CRM-M-35596-2023

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download and use the downloaded copy for attesting bonds.

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Petition allowed in aforesaid terms . All pending applications, if any, stand disposed.

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(ANOOP CHITKARA) JUDGE 17.11.2023 anju rani Whether speaking/reasoned: Yes Whether reportable: No.

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