In Maulana Mohd Amir Rashadi v. State of U.P

Judgment

1. The pe##oner who is in custody for dealing in a commercial quan#ty of Diphenoxylate, viola#ng the above-men#oned provisions of the Narco#cs Drugs and

Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap#oned above, had come up before this Court under Sec#on 439 CrPC, in Aug 2022, seeking bail.

2. The pe##oner’s counsel states that as per the instruc#ons given to him, the pe##oner has the following criminal antecedents: Sr. No. 1. 2. 3. FIR No. 11 28 31 Date 31.01.2014 02.04.2015 29.04.2019 Offences 21/61/85 of NDPS Act 22/61/85 of NDPS Act 21/61/85 of NDPS Act

4. 116

28.06.2019 21/61/85 of NDPS Act Police Sta#on Mulepur Khamano Badali Singh City Khanna-2 Alla

3. 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 etc. The pe##oner contends that further pre-trial incarcera#on would cause an irreversible injus#ce to the pe##oner and their family. Jyoti Sharma 2024.07.23 16:44 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-38547-2022

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. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon’ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a siKng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiLal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances, such as the possibility of fleeing away from the jurisdic#on of the Court, etc.

6. While considering each bail pe##on of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the an#thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa#on Reports, wherein the bail pe##oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu#ons resul#ng in acquiLal or discharge, or when Courts quashed the FIR, the prosecu#on stands withdrawn, or the prosecu#on filed a closure report, cannot be included. Although crime is to be despised and not the criminal, for a recidivist, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles.

7. As per the custody cer#ficate, the pe##oner's total custody is 2 years, 7 months, and 15 days. Although the pe##oner has criminal antecedents, but the history was of not commercial quan##es but of closer to small. Thus, he is en#tled to bail based on Dheeraj Kumar Shukla v. The State of ULar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023.

8. 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.

9. 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 Jyoti Sharma 2024.07.23 16:44 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-38547-2022 irrespec#ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. This order shall come into force from the #me it is uploaded on the official webpage of this Court.

10. 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 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 fiKng 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.

11. 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 be sa#sfied that if the accused fails to appear in court, then such surety can produce the accused before the court. OR (b). The pe##oner will hand over to the concerned court a fixed deposit of 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 favor 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 Jyoti Sharma 2024.07.23 16:44 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-38547-2022 well-established and stable private sector banks. If the bankers are unwilling to make a Fixed Deposit in such an eventuality, it shall be permissible for the pe##oner to prepare an account payee demand draU favoring the concerned Chief Judicial Magistrate for a 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. (d). The pe##oner is to also execute a bond for aLendance 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 of an Indian ci#zen, (If available), when the court deems appropriate or considers the accused as a flight risk.

3. Mobile number (If available)

4. E-Mail id (If available)

12. 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.

13. 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. Jyoti Sharma 2024.07.23 16:44 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-38547-2022

14. 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 acquiLal. 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 fiUeen 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 acquiLal 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 aUer 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 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. Jyoti Sharma 2024.07.23 16:44 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-38547-2022

18. If the pe##oner finds the 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 aUer 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:16)fied copy of this order for furnishing bonds, and any Advocate for the Pe(cid:16)(cid:16)oner can download this order along with case status from the official web page of this Court and a(cid:31)est it to be a true copy. In case the a(cid:31)es(cid:16)ng officer wants to verify the authen(cid:16)city, such an officer can also verify its authen(cid:16)city and may download and use the downloaded copy for a(cid:31)es(cid:16)ng bonds. Pe%%on allowed in terms men%oned above. All pending applica#ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

23.07.2024 Jyo# Sharma Whether speaking/reasoned: Whether reportable: Yes No. Jyoti Sharma 2024.07.23 16:44 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6