Vijay Kumar ...Pe oner v. Union of India

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.

2. In paragraph 18 of the bail pe on, the accused declares that he has no criminal antecedents.

3. On 08.04.2024, when the maBer was reserved, following order was passed:- “Pe(cid:4)(cid:4)oner's counsel prays for bail by imposing any stringent condi(cid:4)ons including surrender of firearms and is also voluntarily agreeable to the condi(cid:4)on that (cid:4)ll the conclusion of the trial before the trial Court, the pe(cid:4)(cid:4)oner shall keep only one mobile number, which is men(cid:4)oned in AADHAR card, if any, and within fi#een days of release from prison undertakes to disconnect all other mobile numbers. He further submits that they shall declare all assets and not claim such declara(cid:4)on as self incrimina(cid:4)on, viola(cid:4)on of Ar(cid:4)cle 20/21 of Cons(cid:4)tu(cid:4)on of India or any other fundamental law/right.” Jyoti Sharma 2024.04.25 15:36 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-3465-2024

4. 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.

5. Prosecu on’s case is that on a secret informa on received by the Narco c Control Bureau on 25.03.2021, 21.370 Kgs of charas was allegedly recovered from an Alto car, in which Des Raj and one Yashwant were riding. ThereaGer, the present FIR was registered. On remand by the police, Pushp Raj named the pe oner in his disclosure statement. REASONING:

6. As per the custody cer ficate, the pe oner's total custody is more than 02 years and 09 months. The pe oner indisputably has no criminal antecedents and has already completed 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 UBar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be aBracted only when the three condi ons are fulfilled, (a). The custody of more than 2 years and 6 months and the delay was not aBributable to accused. (b). (c) The trial is at an ini al stage. The pe oner is the first offender.

7. The pe oner fulfills all the three condi ons and thus, sec on 37 of NDPS Act would not be aBracted. 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.

8. 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.

9. 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, [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 2 Jyoti Sharma 2024.04.25 15:36 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh CRM-M-3465-2024 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. [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 fiPng 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.

10. 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: (a). Pe oner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND (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 officer/court must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR (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 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 draG 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. Jyoti Sharma 2024.04.25 15:36 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-3465-2024 (d). The pe oner is to also execute a bond for aBendance 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. (e). While furnishing personal bond, the pe oner shall men on the following personal iden fica on details:

1. AADHAR number

2. Passport number, (If available), when the aBes ng officer/court thinks appropriate or considers the accused as a flight risk.

3. Mobile number (If available)

4. E-Mail id (If available)

11. 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.

12. 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.

13. The pe oner is directed not to keep more than one prepaid SIM, i.e., one pre- 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 fiGeen 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 Jyoti Sharma 2024.04.25 15:36 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-3465-2024 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.”

14. 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 fiGeen 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 acquiBal 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.

15. 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 aGer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.

16. 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 Jyoti Sharma 2024.04.25 15:36 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-3465-2024 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.”

17. 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.

18. 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 aGer 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.

19. 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.

20. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.

21. There would be no need for a cer(cid:4)fied copy of this order for furnishing bonds, and any Advocate for the Pe(cid:4)(cid:4)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(cid:4)ng officer wants to verify the authen(cid:4)city, such an officer can also verify its authen(cid:4)city and may download and use the downloaded copy for a-es(cid:4)ng bonds. Pe%%on allowed in aforesaid terms. All pending applica ons, if any, stand disposed. (ANOOP CHITKARA) JUDGE

25.04.2024 Jyo Sharma Whether speaking/reasoned: Whether reportable: Yes No. Jyoti Sharma 2024.04.25 15:36 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6