Allowed

Jagroop Kaur v. State of Punjab

Punjab & Haryana HC16 Dec 2023CRM-M/58140/2023

Case brief

AI extract

What is this about?

High Court granted bail to a female first offender charged under the NDPS Act in the commercial category. The court emphasized that Section 37 was not attracted due to the duration of custody and allowed bail subject to severe conditions, including surrendering weapons, using only one prepaid SIM linked to Aadhaar, and furnishing financial security.

What did the court decide?

Petitioner released on bail subject to personal bond, financial security, surrender of weapons, and restrictions on using more than one prepaid mobile number.

Jagroop Kaur Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2023)

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CRM-M-58140-2023

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-58140-2023 Reserved on: 07.12.2023 Pronounced on: 16.12.2023

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Jagroop Kaur

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...Pe��oner

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Versus State of Punjab …Respondent

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CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Mr. Rituraj Singh, Advocate for the pe��oner.

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Mr. Shiva Khurmi, AAG, Punjab.

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ANOOP CHITKARA, J.

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FIR No.	Dated	Police Sta2on	Sec2ons
110	18.05.2021	Model Town, Hoshiarpur	21/18/29/60/61/85 of NDPS Act

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The pe��oner incarcerated for viola�ng the above-men�oned provisions of Narco�cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap�oned above, has come up before this Court under Sec�on 439 CrPC seeking bail.

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In paragraph 17 of the bail pe��on, the accused declares that he has no criminal antecedents.

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Pe��oner's counsel prays for bail by imposing any stringent condi�ons and states that they would have no objec�on to the condi�ons, i.e., surrender of weapons and are also voluntarily agreeable to the condi�on that �ll the conclusion of the trial, the pe��oner shall keep only one mobile number, which is men�oned in AADHAR card, if any, and within fi?een days undertakes to disconnect all other mobile numbers. The pe��oner contends that the further pre-trial incarcera�on would cause an irreversible injus�ce to the pe��oner and family.

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-58140-2023

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While opposing the bail, the conten�on on behalf of the State is that the quan�ty of contraband involved in the case falls in the commercial category. State counsel further submits that out of 15 witnesses, 8 witnesses have already been examined, in case, this Court grants bail, it will be delay the trial.

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The facts are being taken from paragraphs No. 2 to 4 of the short reply dated 07.12.2023 filed by the concerned Deputy Superintendent of Police, which reads as follows:

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2. That it is submi�ed that on 18.5.2021, SI Dalwinder Singh alongwith other police officials was present at Police Sta"on Model Town, Hoshiarpur where informa"on was received that police party headed by ASI Charanjit Singh during picket at Tanda Chowk, apprehended one white colour Swi, Car bearing No.PB-02BH-4443 in which two persons were riding. He requested for sending regular IO to which SI Dalwinder Singh with police party reached the spot where ASI Charanjit Singh produced Pushpinder Singh @ Tinku son of Parshotam Lal, resident of H.No.432, Mohalla Narayan Nagar, Hoshiarpur and Amit Chaudhary son of Varinder Saini, resident of Mohalla Tagore Nagar, Gali No.4, Mohalla Bassi Khawaju, Hoshiarpur, before him. A,er complying with the provisions of law, on 2 personal search of accused Pushpinder Singh @ Tinku, 'Heroin' wrapped in polythene envelope was recovered from right side pocket of his pant which on weighment came to be 45 gram. Similarly, on personal search of accused Amit Chaudhary, 'Heroin' wrapped in polythene envelope was recovered from right side pocket of his pant which on weighment came to be 25 gram. During the ques"oning the accused Pushpinder Singh @ Tinku and "Amit Chaudhary disclosed that they purchased this heroine from Jasvir Singh @ Gajju son of Parkash Singh R/o Green Avenue, Near Saraswa" College, P.S. Jandiala, Dis�. Amritsar and Jagroop Kaut who is living with him. The accused Pushpinder Singh @ Tinku and accused Amar Chaudhary have commi�ed offences Us 21,29, 60, 61, 85 NDPS Act by keeping recovered heroine in their possession and as such Ruqa was sent to the Police Sta"on for registra"on of a case, accordingly FIR No.110, dated 18-05-2021, U/s 21/29/18/60,61/85 NDPS Act was registered at P.S. Model Town, Hoshiarpur against the pe""oner - Jagroop Kaur and others.

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3. That it is submi�ed that during the inves"ga"on, the Police of P.S. Model Town, Hoshiarpur charged into the house of Jasvir Singh @ Gajju where the pe""oner was present in front of the gate of the house and 100 grams heroine was recovered from the right hand of the pe""oner from polythene, which was inside the polythene carried by the pe""oner in her right hand. A,er comple"on of necessary formali"es the 100 grams heroine was taken into police custody. Regarding raid upon the house of accused-Jasvir Singh, where the pe""oner was arrested, DDR No.35, dated 18.05.2021 was recorded in Police Sta"on Jandiala, District Amritsar Rural.

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-58140-2023

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4. That it is submi�ed that the pe""oner also got recovered 1 kg 430 grams heroine and 580 grams opium from the Almirah of room of Jasvir Singh at the demarca"on of pe""oner were recovered and 560 gold ar"cles, silver ornaments and Rs.49,48,700/- were also recovered from the Almirah of room of Jasvir Singh at the demarca"on of pe""oner. A,er comple"on of necessary formali"es the aforesaid heroine 1 kg 430 grams heroine, 580 grams opium, 560 grams gold jewelry, silver ornaments and Rs.49,48,700/-.

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Counsel for the pe��oner seeks bail on the ground that the pe��oner has clean antecedents and has no criminal history. This fact is explicitly men�oned in paragraph 17 of the bail pe��on even as per the custody cer�ficate dated 06.12.2023, the pe��oner has no criminal history and her custody is 02 years, 06 months and 21 days.

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REASONING:

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As per the reply, the pe��oner is living with Jasbir Singh, who has three cases. The criminal history of her partner cannot be taken as her criminal history. As per the custody cer�ficate, the pe��oner's total custody is 02 years, 06 months and 21 days. The pe��oner indisputably has no criminal antecedents and has already complete pre-trial custody exceeding two years and six months. Thus, he is en�tled to bail based on Dheeraj Kumar Shukla v. The State of UFar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be aFracted only when the three condi�ons are fulfilled,

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

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(b). The trial is at an ini�al stage.

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The pe��oner fulfills all the three condi�ons and thus, sec�on 37 of NDPS Act would not be aFracted. The possibility of the accused influencing the inves�ga�on, tampering with evidence, in�mida�ng witnesses, and the likelihood of fleeing jus�ce, can be taken care of by imposing elabora�ve and stringent condi�ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons�tu�onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric�ve condi�ons.

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However, 7 witnesses are yet to be examined and considering the fact that the pe��oner has already undergone 02 years and 06 months and she is a female, she can be granted bail subject to the strict condi�ons that in case she misses even a single date without unjus�fiable cause then it shall be permissible for the trial Court to cancel this bail.

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-58140-2023

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Without commen�ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men�oned above, the pe��oner makes a case for bail, subject to the following terms and condi�ons, which shall be over and above and irrespec�ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

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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 exponen�al growth in technology and ar�ficial intelligence has transformed iden�fica�on techniques remarkably. Voice, gait, and facial recogni�on are incredibly sophis�cated and pervasive. Impersona�on, as we know it tradi�onally, 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 jus�ce, then in such cases, appropriate condi�ons 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 revolu�on has just begun, to keep pace with exponen�al and unimaginable changes the technology has brought to human lives, it is only fiOng that the dependence of the accused on surety is minimized by giving alterna�ve op�ons. 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 pe��oner is not required in any other case, the pe��oner shall be released on bail in the FIR cap�oned above, in the following terms :

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(a). Pe��oner 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 sa�sfac�on of the concerned court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accep�ng the surety, the concerned court must sa�sfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR

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(b). Pe��oner to hand over to the concerned court a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automa�c renewal of the principal and the interest rever�ng 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

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-58140-2023

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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 permissible for the pe��oner to prepare an account payee demand dra? favouring concerned Chief Judicial Magistrate for the similar amount. (c). Such court shall have a lien over the funds un�l the case's closure or discharged by subs�tu�on, or up to the expiry of the period men�oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en�re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.

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(d). The pe��oner is to also execute a bond for aFendance in the concerned court(s) as and when asked to do so. The presenta�on of the personal bond shall be deemed acceptance of the declara�ons made in the bail pe��on and all other s�pula�ons, terms, and condi�ons of sec�on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.

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(e). While furnishing personal bond, the pe��oner shall men�on the following personal iden�fica�on details:

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1.	AADHAR number
2.	Passport number, (If available), when the aFes�ng 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 pe��oner 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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Pe��oner to comply with their undertaking made in the bail pe��on, made before this court through counsel as reflected at the beginning of this order. If the pe��oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic�m/complainant may file any such applica�on for the cancella�on of bail, and the State shall file the said applica�on.

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

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-58140-2023

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paid mobile phone number, �ll the conclusion of the trial; however, this restric�on is only on prepaid SIMs [mobile numbers] and not on post-paid connec�ons or landline numbers. The pe��oner must comply with this condi�on within fi?een days of release from prison. The concerned DySP shall also direct all the telecom service providers to deac�vate all prepaid SIM cards and prepaid mobile numbers issued to the pe��oner, except the one that is men�oned as the primary number/ default number linked with the AADHAAR card and further that �ll the no objec�on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe��oner’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 direc�ons 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 pe��oner, except the main number/default number linked with AADHAR, by taking such informa�on from the pe��oner’s AADHAR details or any other source, for which they shall be legally en�tled by this order. This condi�on shall con�nue �ll the comple�on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655 , [para 45], while gran�ng bail under Unlawful Ac�vi�es (Preven�on) Act, 2002, Supreme Court had directed imposi�on of the similar condi�on, which reads as follows, “(d) Both the appellants shall use only one Mobile Phone each, during the �me they remain on bail and shall inform the Inves�ga�ng Officer of the NIA, their respec�ve mobile numbers.”

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Given the background of allega�ons against the pe��oner, it becomes paramount to protect the drug detec�on squad, their family members, as well as the members of society, and incapacita�ng the accused would be one of the primary op�ons un�l the filing of the closure report or discharge, or acquiFal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric�on 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 sanc�on]. Given the nature of the allega�ons and the other circumstances peculiar to this case, the pe��oner shall surrender all weapons, firearms, ammuni�on, if any, along with the arms license to the concerned authority within fi?een days from release from prison and inform the Inves�gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe��oner shall be en�tled to renew and take it back in case of acquiFal in this case, provided otherwise permissible in the concerned rules. Restric�ng firearms would ins�ll confidence in the vic�m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea�ng the offence.

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-58140-2023

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During the trial's pendency, if the pe��oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi�on as s�pulated in this order, it shall always be permissible to the respondent to apply for cancella�on of this bail. It shall further be open for any inves�ga�ng agency to bring it to the no�ce of the court seized of the subsequent applica�on that the accused was earlier cau�oned not to indulge in criminal ac�vi�es. Otherwise, the bail bonds shall remain in force throughout the trial and a?er that in Sec�on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi�ons.

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The condi�ons men�oned 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 Pe��on (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 condi�ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor�onal to the purpose of imposing them. The courts, while imposing bail condi�ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi�ons that would result in the depriva�on of rights and liber�es must be eschewed.”

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Any Advocate for the pe��oner and the Officer in whose presence the pe��oner puts signatures on personal bonds shall explain all condi�ons of this bail order in any language that the pe��oner understands.

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If the pe��oner finds bond amount beyond social and financial reach, it may be brought to the no�ce of this Court for appropriate reduc�on. Further, if the pe��oner finds bail condi�on(s) as viola�ng fundamental, human, or other rights, or causing difficulty due to any situa�on, then for modifica�on of such term(s), the pe��oner may file a reasoned applica�on before this Court, and a?er 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 condi�on.

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Any observa�on 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 protec�on from incarcera�on, the Court believes that the accused shall also reciprocate through desirable behavior.

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-58140-2023

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There would be no need for a cer"fied copy of this order for furnishing bonds, and any Advocate for the Pe""oner can download this order along with case status from the official web page of this Court and a�est it to be a true copy. In case the a�es"ng officer wants to verify the authen"city, such an officer can also verify its authen"city and may download and use the downloaded copy for a�es"ng bonds.

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Pe22on allowed in aforesaid terms . All pending applica�ons, if any, stand disposed.

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(ANOOP CHITKARA) JUDGE 16.12.2023 Jyo�-II Whether speaking/reasoned: Yes Whether reportable: No.

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JYOTI 2023.12.16 13:24 I attest to the accuracy and integrity of this order/judgment.

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Jagroop Kaur v. State of Punjab

Case brief

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Jagroop Kaur v. State of Punjab

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