Shyam Hazra @ Shyamdeo Hazra @ Shyam Hazra, s/o Late Jamun Hazra, aged about v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.1437 of 2023 Shyam Hazra @ Shyamdeo Hazra @ Shyam Hazra, s/o Late Jamun Hazra, aged about 34 years, r/o Panchayat Lataki, Village Lataki, P.O. Lataki, PS. Jamua, District Giridih …… Appellant Versus The State of Jharkhand ……Respondent ---------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
Legal Reasoning
been referred. Therefore, the prima facie we are of the view that till date the prosecution has not been able to come up with evidence of attracting ingredient of sections 3/4 of the Explosive Substance Act. 9. Therefore, even accepting the prosecution version that there is illegal mining and as such the allegation of section 21 of Mines & Minerals(Development & Regulation) Act, 1957, under Rule 54 of Jharkhand Minor Minerals Concession Rules, 2004, Rule 13 of Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 is fit to be attracted then only the maximum -4- punishment under section 21 of MMDR Act is five years and so far as the penal offence under the Jharkhand Minor Mineral Concession Rule is concerned of three years and hence applying the principle laid down by Hon’ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. reported in (2021) 10 SCC 773, wherein the Hon’ble Apex Court has been pleased to hold that the custodial interrogation is not required if the offence is less than 7 years. The relevant paragraph of the aforesaid judgment is being quoted here as under:- 3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the courts below. The guidelines are as under: “Categories/Types of Offences (A) Offences punishable with imprisonment of 7 years or less not falling in Categories B and D. (B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years. (C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act [Section 212(6)], etc. (D) Economic offences not covered by Special Acts. Requisite Conditions (1) Not arrested during investigation. (2) Cooperated investigating officer whenever called. (No need sheet Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676] ) such an accused along with investigation throughout forward including appearing before charge- the the to in Category A After filing of charge-sheet/complaint taking of cognizance (a) Ordinary summons at the 1st instance/including permitting appearance through lawyer. (b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued. (c) NBW on failure to appear despite issuance of bailable warrant. (d) NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing. (e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided. Category B/D On appearance of the accused in court pursuant to process issued bail application to be decided on merits. Category C Same as Categories B and D with the additional condition of compliance of the provisions of bail under NDPS (Section 37), Section 45 of the PMLA, Section 212(6) of the Companies Act, Section 43-D(5) of the UAPA, Pocso, etc.” -5- 10. Accordingly, the order dated 19.07.2023 passed in ABP No.1249 of 2023 in connection with Jamua P.S. Case No. 215 of 2023, is hereby quashed and set aside. 11. On consideration of the aforesaid facts, this Court is inclined to extend the privilege of pre-arrest bail to the appellant. The appellant, named above, accordingly, is directed to surrender before the learned court below within 10 days and on his surrender, he shall be released on bail on furnishing bail bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) with two sureties of the like amount each, to the satisfaction of the learned J.M. 1st Class, Giridih in connection with Jamua P.S. Case No. 215 of 2023, subject to the condition as follows: i. that the appellant shall co-operate in the investigation and shall appear before the investigation agency and the learned trial court, as and when required; ii. that the appellant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or tamper with the evidence; iii. that the appellant shall surrender his passport, if any, to the concerned trial Court forthwith. His passport will remain in custody of the concerned trial Court; iv. that the petitioner shall not leave India during the pendency of trial without prior permission from the concerned trial Court; -6- v. that in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the appellant; 12.
Arguments
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ----- For the Appellant : Mr. Yogesh Modi, Advocate For the State : Mr. Ravi Prakash, Spl. P.P. ….. Order No.09/ Dated:18.01.2024 1. The instant appeal under section 21(4) of the National Investigation Agency Act, 2008 has been directed against the order dated 19.07.2023 passed by the Court of learned Additional Sessions Judge VIII, Giridih, in ABP No.1249 of 2023 whereby and whereunder the prayer for bail of the appellant in connection with Jamua P.S. Case No. 215 of 2023, registered for the offence under sections 286/379 of the Indian Penal Code, u/s 21/22 Mines & Minerals (Development and Regulation) Act, under Rule 13 of Jharkhand Minerals (Prevention of Illegal Mining, -2- Transportation and Storage) Rules, 2017, under Rule 4/54 of Jharkhand Minor Mineral Concession Rules and u/s 3, 4 of Explosives Substance Act, has been rejected. 2. Learned counsel for the appellant has submitted that it a case where there is no evidence has been collected said to the commission of offence of illegal mining or there is no ingredient of Section 3,4 of the Explosives Substance Act. It has been submitted that Section 3 & 4 of the Explosives Substance Act is only to be attracted if any explosive substance has been recovered from the physical or conscious possession of the person concerned and it would be evident from the FIR or the materials collected during the course of investigation which has come till date that no any explosive substance has been recovered from the physical and conscious possession of the appellant. 3. It has further been submitted that although the allegation has been leveled under Section 21 and 22 of the MMDR Act, 1957 and Rule 13 of Jharkhand Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017 but there is no ingredient of attracting the offences. 4. Learned counsel for the appellant in view of the aforesaid ground has submitted that the learned court while considering the prayer for bail has not considered the matter and hence the impugned order may be interfered with. 5. While on the other hand, learned Special Public Prosecutor appearing for the respondent has vehemently opposed the prayer for bail of the appellant by taking the ground that the nature of allegation as per the FIR -3- and the materials collected during the course of investigation is serious in nature. 6. We have heard the learned counsel for the parties, come across the findings recorded by the learned court by considering the prays for pre- arrest bail and the stand taken in the counter affidavit. 7. We are conscious of the fact that personal liberty is a very precious fundamental right enshrined in Article 21 of the Constitution of India and deprivation of liberty is a matter of grave concern. It should be curtailed only when it becomes imperative to the peculiar facts and circumstances of the case. 8. Further, the argument has been advanced regarding no ingredient of Section 3/4 of the Explosive Substance Act, 1908 in order to assess the said argument has come across, the allegation as levelled in the First Information Report and also the counter affidavit, we found therefrom that no allegation regarding recovery of any Explosive Substance Act has
Decision
In view thereof, the instant appeal stands disposed of. (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Rajnish/