Criminal Misc. No. M-6588 of 2010 v. State of Haryana

Mr. Sandeep Mann, Sr. DAG, Haryana, for the respondent – State. SHAM SUNDER, J. This petition, is directed, against the order dated 01.09.09, rendered by the Presiding Officer, Special Court, Kurukshetra, vide which, the petitioner (accused in the main case), was directed, to furnish cash bail bond and cash surety bond, in the sum of Rs. 1 lac each.

2. Case FIR No. 131 dated 12.06.09, under Section 21 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter Criminal Misc. No. M-6588 of 2010 2 to be called as the 'Act' only), Police Station Adarsh, Kurukshetra, was registered, against the petitioner, on the allegations that, on

12.06.09, he was found in possession of 500 gms smack. He was arrested.

3. The petitioner, a Police official, filed an application for bail, before the trial Court. The trial Court, relying upon E. Micheal Raj Vs. Intelligence Officer, Narcotic Control Bureau, 2008(2), RCR (Criminal), 597 (SC), came to the conclusion, that diacetyl- morphine, in the sample sent, was 2.8 per cent, and if this narcotic substance, was calculated, then the petitioner, was only found in possession of 15 gms heroin, falling within the ambit of non- commercial quantity. Accordingly, the trial Court, directed the petitioner, to furnish cash bail bond and cash surety bond, in the sum of Rs. 1 lac each. Other suitable conditions were also imposed.

4. Feeling aggrieved, the instant petition, has been filed, by the petitioner.

5. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

6. The Counsel for the petitioner, submitted that the trial Court, could not direct the petitioner, to furnish cash bail bond and cash surety bond, in the sum of Rs. 1 lac each. He further submitted that, according to the provisions of Section 445 Cr.P.C., the Court below, could only permit the accused/petitioner, to furnish cash bail bond, if he wanted to do so, but, no demand, with regard to the furnishing of cash bail bond, could be made by the Court. He further Criminal Misc. No. M-6588 of 2010 3 submitted that, even the condition of furnishing cash bail bond and cash surety bond, in the sum of Rs. 1 lac each, imposed by the Court below, is unreasonable and onerous. He further submitted that the order of the trial Court, to this extent, being illegal, is liable to be set aside.

7. On the other hand, the Counsel for the respondent, submitted that, at the time of submission of the cash bail bond and the cash surety bond, in the sum of Rs. 1 lac each, in pursuance of the order, passed by the trial Court, the petitioner, did not raise any objection. He further submitted that, if the petitioner, had any grievance, against the order, passed by the trial Court, he could raise an objection or refuse to submit the same. He further submitted that, once the petitioner, voluntarily furnished the cash bail bond and cash surety bond, in the sum of Rs. 1 lac each, later on, he could not wriggle out of his own voluntary admission. He further submitted that, the order, passed by the trial Court, directing the petitioner, to furnish the cash bail bond and cash surety bond, in the sum of Rs. 1 lac each, could not be said to be, in any way illegal. He further submitted that, the petition, being devoid of merit be dismissed.

8. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, in the manner, depicted below, for the reasons, to be recorded, hereinafter. Section 445 Cr.P.C., deals with the situation, prevailing in the instant petition. The provisions of Section 445 Cr.P.C., are extracted hereunder:- Criminal Misc. No. M-6588 of 2010 4 “Deposit instead of recognizance :- When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or government promissory notes to such amount as the Court or officer may if in lieu of executing such bond.”

9. The plain reading of the provisions of Section 445 Cr.P.C., extracted above, clearly goes, to reveal, that when any person, is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or government promissory notes to such amount, as the Court or officer may if, in lieu of executing such bond. Section 445 Cr.P.C., does not speak of passing the order, by the Court, directing the accused, to furnish bail bonds, in the cash amount, but, only permits the accused, to furnish the same, if he so desires. In the instant case, the operative part of the order, passed by the trial Court, is as under:- “Accused-petitioner Ram Lal is granted the concession of bail and he is ordered to be released on bail on his furnishing cash bail bonds/surety bonds in the sum of Rs. 1,00,000/- with one surety in the like cash amount, as the learned Public Prosecutor for the State that the accused has been found in possession of 500 gms of smack of the value of Rs. 50,00,000/- (Rs. Fifty Lacs only) and there are chances that he can flee away from the Court. Accused- petitioner is also directed that he shall not leave Country without the prior permission of this Court. He is also directed to surrender his passport in the Court alongwith the bail bonds.” Criminal Misc. No. M-6588 of 2010 5

10. The tone and tenor of the operative part of the order, passed by the trial Court, extracted above, clearly reveals, that the accused, was ordered, to be released on bail, on his furnishing cash bail bonds, in the sum of Rs. 1 lac, with one surety in the like cash amount each. It was not, that the Court below, passed a simple order, directing the accused, to furnish the bail bond and the surety bond, in a particular sum. It was not, that the accused of his own, wanted to furnish the cash bail bond and the cash surety bond. Such an order, passed by the trial Court, directing the accused, to furnish the cash bail bond and cash surety bond, in the sum of Rs. 1 lac each, being contrary to the provisions of Section 445 Cr.P.C., is unsustainable, in the eye of law. In R.R. Chari Vs. Emperor, AIR (35), 1948, Allahabad, 238, while interpreting the provisions of Section 513 Cr.P.C., 1898, now Section 445 Cr.P.C., 1973 (amended upto date), the Allahabad High Court, laid down, the same principle of law. In R.R. Chari's case (supra), it was, in clear-cut terms held, that Section 513 Cr.P.C., referred to above, did not authorize a demand of cash bail bonds, in lieu of furnishing the simple bail bonds by the Magistrate. Similar principle of law, was laid down, in Bir Singh Vs. The State of Punjab, 1977, The Punjab Law Reporter, 554 (P&H). The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The order dated 01.09.09, directing the accused/petitioner, to furnish the cash bail bond and cash surety bond, in the sum of Rs. 1 lac each, is illegal, and liable to be set aside. Criminal Misc. No. M-6588 of 2010 6

11. For the reasons recorded above, the order dated 01.09.09, directing the accused/petitioner, to furnish the cash bail bond and cash surety bond, in the sum of Rs. 1 lac each, and another order dated 01.09.09, vide which, the cash bail bond and the cash surety bond, in the sum of Rs. 1 lac each, were accepted, are set aside. The petitioner, shall, however, furnish bail bond, in the sum of Rs. 1 lac, with one surety in the like amount, within a period of 25 days. On his furnishing the bail bond, in the sum of Rs. 1 lac, with one surety in the like amount, the amount, in cash, in respect of the bail bonds, if already deposited, by him, shall be refunded, to him, by the trial Court, against valid receipt. However, at the time of acceptance of the bail bonds, the Court below, shall be at liberty, to impose any such condition, as may be permissible, under the provisions of law, so as to ensure, that the petitioner, does not flee from justice, and face the trial. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

12. The Registry, is directed, to send copies of the order to the quarters concerned, immediately, by all modes of communication.

30.03.2010 Amodh (SHAM SUNDER) JUDGE