High Court of H.P.1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 2168 of 2020

Reserved on: 14

th

Dec 2020.

Date of Decision: 1

st

Jan, 2021.

Sunny Kapoor @ Honey ...Petitioner.

Versus

State of H.P. ...Respondent.

Coram:

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?

1

YES

For the petitioner: Mr. Pawan Gautam, Advocate.

For the respondent: Mr. Anil Jaswal, & Mr. Nand Lal Thakur, Addl.

Advocates General.

Amicus Curiae : Ms. Shilpa Sood, Advocate.

THROUGH VIDEO CONFERENCE

FIR NO.DATED POLICE STATION SECTIONS

108 of

2020

09.08.2020Damtal, District Kangra,

Himachal Pradesh

15 of the NDPS

Act

Anoop Chitkara, Judge.

A habitual offender, who twice underwent sentences upon conviction under

Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), is once again

in prison w.e.f. 9th Aug 2020, for possessing 15.290 kilograms of poppy husk, and

has now come up before this Court under Section 439 of CrPC, seeking bail, on the

grounds that the quantity of contraband allegedly seized is intermediate quantity and

does not restrict bail, because the quantity greater than 50 kilograms of poppy straw,

falls in the category of the commercial quantity; hence the restrictions for bail

imposed in S. 37 of NDPS Act, do not apply, and in the present case he is in custody

for a considerable time.

1

Whether reporters of Local Papers may be allowed to see the judgment?

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2.Earlier, the petitioner had filed a petition under Section 439 CrPC before the

concerned Sessions Court. However, vide order dated 25.11.2020, Ld. Special Judge-

II, Kangra at Dharamshala, HP, dismissed the petition because the accused is a

habitual offender.

3.Para 5 of the bail petition and status report mentions the following criminal

history:

a)FIR No.65 of 2004 dated 10.04.2004, under the Excise Act, wherein the

petitioner was acquitted. Thus, it is inconsequential.

b)FIR No. 40 of 2013, dated 10.06.2013 under Section 15 of the NDPS

Act, Police Station Sadar Pathankot. The accused-petitioner was

convicted by learned trial Court vide order dated 20.08.2015 to undergo

simple imprisonment for a period already undergone.

c)FIR No. 104/2016, dated 17.12.2016, under Section 21-61-85 of NDPS

Act at Police Station, Pathankot. The accused-petitioner was convicted

by learned trial Court vide order dated 21.12.2019 to undergo simple

imprisonment for a period already undergone.

4.Briefly, the allegations against the petitioner are that on 9.8.2020, the SHO of

the Police Station Damtal, District Kangra, H.P., was patrolling in the area falling in

his jurisdiction. At around 9.50 a.m., when he was coming from Shekhpur towards

Damtal, he noticed a person carrying a plastic bag on his shoulder. The moment the

said person saw the police vehicle, he kept down the bag and put it on the road. The

SHO stopped and inquired about his name, who revealed his name as Sunny Kapoor

@ Honey, the petitioner herein. When the SHO, who was also the Investigating

Officer, enquired about the bag, the said person became perplexed and did not

answer. It arose suspicion in the mind of the SHO, and he associated an independent

witness. In the presence of the said witness, the Investigating Officer directed the

petitioner Sunny Kapoor to open the bag, but he showed his reluctance. Upon

refusal of the accused to open the bag, the Investigator untied the string tying the

bag. On opening the bag, the Investigator noticed one electronic scale, and below

which two polythene bags were kept, both containing brown colored powder. The

experience of the Investigator pointed out the powder to be of poppy straw. After

that, the Investigator procured the electronic scale and conducted other proceedings

on the spot. The contraband, when weighed on an electronic scale, measured as

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15.290 kilograms. After that, the police arrested the accused and sent a

communication to the Police Station, which led to the registration of the FIR,

mentioned above.

5.Ld. Counsel for the petitioner contends that incarceration before the proof of

guilt would cause grave injustice to the petitioner and family.

6.On the contrary, Mr. Nand Lal Thakur, Ld. Additional Advocate General

contends that the accused is a proven habitual offender, and given his past conduct;

he is likely to repeat the offence. He further insists that if this Court is inclined to

grant bail, then such a bond must be subject to very stringent conditions.

7.Ms. Shilpa Sood Advocate, Ld. Amicus Curiae, contends that to deny bail to a

habitual offender would depend upon the gravity of previous crimes, sentences

prescribed or imposed, and the period of incarceration undergone. She further argued

that an accused is presumed to be innocent unless convicted, although second or

third-time conviction for the same or similar offence may attract even more stringent

punishment. The Courts have to keep in mind various factors while granting or

denying bail to the applicant and judging whether the investigation and trial of the

case can go on smoothly by releasing the accused and imposing conditions while

doing so. To substantiate her contention, Ms. Shilpa Sood, Ld. Amicus Curiae, cited

several judicial precedents.

ANALYSIS AND REASONING :

8.The petitioner stands arraigned as an accused in an FIR for the commission of

offences prescribing more than seven-year sentence. It means that apart from

discussing the rival contentions, the Court needs to take a holistic view of the matter.

9.Pre-trial incarceration needs justification depending upon the offense's heinous

nature, terms of the sentence prescribed in the statute for such a crime, probability of

the accused fleeing from justice, hampering the investigation, criminal history of the

accused, and doing away with the victim(s) and witnesses. While considering bail,

the Court has to maintain a balance between all stakeholders and safeguard the

interests of the victim, the accused, society, and the State. The primary purpose of

bail is to secure the presence of the accused to attend the trial.

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10.While deciding bail applications, the Courts should confine the discussions on

evidence only to the extent relevant for determining bail and the difference in the

order of bail, and final judgment is similar to a sketch and a painting; however, some

sketches are in detail and paintings with a few strokes.

11.In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a

Constitutional Bench of Supreme Court held that the bail decision must enter the

cumulative effect of the variety of circumstances justifying the grant or refusal of

bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC

42, (Para 18) a three-member Bench of Supreme Court held that the persons accused

of non-bailable offences are entitled to bail if the Court concerned concludes that the

prosecution has failed to establish a prima facie case against him, or despite the

existence of a prima facie case, the Court records reasons for its satisfaction for the

need to release such person on bail, in the given fact situations. The rejection of bail

does not preclude filing a subsequent application. The courts can release on bail,

provided the circumstances then prevailing requires, and a change in the fact

situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3),

Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put

as bail, not jail, except where there are circumstances suggestive of fleeing from

justice or thwarting the course of justice or creating other troubles in the shape of

repeating offences or intimidating witnesses and the like by the petitioner who seeks

enlargement on bail from the Court. It is true that the gravity of the offence involved

is likely to induce the petitioner to avoid the course of justice and must weigh when

considering the question of jail. So also, the heinousness of the crime. In Gudikanti

Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court

held that the delicate light of the law favors release unless countered by the negative

criteria necessitating that course. In Prahlad Singh Bhati v NCT, Delhi, (2001) 4

SCC 280, Supreme Court highlighted one of the factors for bail to be the public or

the State's immense interest and similar other considerations. In Dataram Singh v

State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the

grant or refusal of bail is entirely within the discretion of the judge hearing the matter

and though that discretion is unfettered, it must be exercised judiciously,

compassionately, and in a humane manner. Also, conditions for the grant of bail

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ought not to be so strict as to be incapable of compliance, thereby making the grant

of bail illusory.

12.Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity

greater than the quantity specified in the schedule. S. 2 (xxiii-a) defines a small

quantity as the quantity lesser than the quantity specified in the schedule. The

remaining quantity falls in an undefined category, which is now generally called as

intermediate quantity. The penal sections in the NDPS Act, which specify an offense,

also mention the minimum and maximum sentence, depending upon the substance's

quantity. Commercial quantity mandates a minimum sentence of ten years of

imprisonment and a minimum fine of Rupees One Lac, and bail is subject to the

riders commanded in S. 37 of NDPS Act.

13.Sr. No. 110 of the Notification, issued under Section 2 (viia) of NDPS Act,

defines that the commercial quantity of poppy straw is greater than 50 kgs and S. 2

(xxiiia) states that the small quantity to be lesser than 1000 grams (1Kg). The

quantity of drug involved is 15.290 Kg of poppy straw, which is less than the

commercial quantity.

14.In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC

471, the Hon’ble Supreme Court holds that in intermediate quantity, the rigors of the

provisions of Section 37 may not be justified.

15. When the quantity is less than commercial, the rigors of Section 37 of the

NDPS Act will not attract, and factors become similar to bail petitions under regular

statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused

is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points

towards the exceptional circumstances, negating the bail.

16.In Prem Singh v State of HP, Cr.MP(M) No. 135 of 2020, this Court, after

surveying judicial precedents relating to disclosure of criminal history in bail

petitions, observed that apart from the petitioner, the prosecution, in its status report,

shall also explicitly mention the criminal history. In bail petitions where there is no

pleading about the criminal record, then the State/Respondent(s) shall bring it to the

concerned Court's notice about non-mentioning of the criminal history. In such a

situation, it shall be for the concerned Court to take a call, if it so desires, depending

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upon the facts of each case (Para 15 & 16).

PRECEDENTS CONCERNING BAIL TO HABITUAL OFFENDERS :

17.In Dhanji Ram Sharma v Superintendent of Police, North District Delhi

Police, 1966 AIR(SC) 1766, Supreme Court considering the powers of the police

officials to make entries in the surveillance register, holds,

[7]. A habitual offender or a person habitually addicted to crime

is one who is a criminal by habit or by disposition formed by

repetition of crimes. Reasonable belief of the police officer that

the suspect is a habitual offender or is a person habitually

addicted to crime is sufficient to justify action under Rr.23.4(3)

(b) and 23.9(2). Mere belief is not sufficient. The belief must be

reasonable, it must be based on reasonable grounds. The suspect

may or may not have been convicted of any crime. Even apart

from any conviction, there may be reasonable grounds for

believing that he is a habitual offender."

18.In Vijay Narain Singh v State of Bihar, (1984) 3 SCC 14, a three Judges

Bench of Supreme Court observed,

[11] According to its ordinary meaning, the word 'habitual' as

given in Shorter Oxford English Dictionary, Vol 1, P. 910 is:

"A. adj (1) Belonging to the habit or inward

disposition; inherent or latent in the mental

constitution;

(2) of the nature of a habit; fixed by habit; constantly

repeated, customary.

B. A habitual criminal, drunkard, etc."

[12] A person is a habitual criminal who by force of habit or

inward disposition, inherent or latent in him, has grown

accustomed to lead a life of crime. It is the force of habit

inherent or latent in an individual with a criminal instinct, with a

criminal disposition of mind, that makes him dangerous to the

society in general. In simple language the word 'habitually'

means 'by force of habit'…

19.In D.M. Nagaraja v Government of Karnataka, (2011) 10 SCC 215, while

considering the order of preventive detention, Hon’ble Supreme Court holds,

[15]. As rightly pointed out by Ms. Anitha Shenoy, learned

counsel for the State, the perusal of the records and all the above

details furnished in the detention order clearly show that the

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appellant-detenue started his career in criminal field when he

was 30 years old and is now about 60 years. In the beginning, he

was the follower of notorious rowdies Jairaj and Korangu

Krishna. Later, he formed his own gang consisting of his own

younger brother Krishna @ Kitti along with others. Krishna @

Kitti met his end in police encounter during 1996 in Rajajinagar

P.S. Crime No. 125 of 1996 for the offences punishable under

Sections 141, 143, 147, 148, 302 read with Section 149 Indian

Penal Code.

[16]. The records also indicate that the detenue has about 28

associates assisting him in his criminal activities and a number

of cases are pending against them. The detenue has no regard for

human life. The cases registered against him pertain to murder,

attempt to murder, dacoity, rioting, assault, damage to public

property, provoking the public, extortion while settling land

disputes, possessing illegal weapons etc. Though he was

sentenced to undergo rigorous imprisonment for 9 years, that has

not deterred him to put a stop to his criminal activities. In fact,

from the year 1981 up to 2010, he has systematically committed

these criminal activities.

[17]. All the above-mentioned details which have been correctly

stated in the detention order clearly show that the appellant is

not amenable to ordinary course of law. It also shows that even

after his release on bail from the prison on various occasions, he

again started indulging in same type of offences, particularly,

threatening the public life, damaging pubic property etc….

20.In Union of India v. Mahaboob Alam, (2004) 4 SCC 105, Hon’ble Supreme

Court holds that in appeal against conviction under NDPS Act, High Court erred in

suspending the sentence of a repeat offender on the grounds that co-accused had been

granted bail.

21.In Union of India v Kuldeep Singh, (2004) 2 SCC 590, Supreme Court holds,

[17] An offence relating to narcotic drugs or psychotropic

substance is more heinous than a culpable homicide because the

latter affects only an individual while the former affects and

leaves its deleterious impact on the society, besides shattering

the economy of the nation as well. That the legislature intended

to make the offences under the Act so serious to be dealt with

sternly and with an iron hand is made clear by providing for

enhanced penalties, including even death sentence, in certain

class of cases, when convicted for the second time.

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[19] Discretion is to know through law what is just. Where a

Judge has and exercises a judicial discretion his order

unappealable unless he did so under a mistake of law or fact or

in disregard of principle, or after taking into account irrelevant

matters. It will help to show this if it can be shown that there

were no materials on which he could exercise his discretion in

the way he did. Not any one of the reasons attempted to be

enumerated by the High Court in this case could in law be

viewed as either relevant or reasonable reasons carrying even

any resemblance of nexus in adjudging the quantum of

punishment in respect of an offence punishable under the Act.

[20] When anything is left to any person, Judge or Magistrate to

be done according to his discretion, the law intends it must be

done with sound discretion, and according to law. (See Tomlin's

Law Dictionary). In its ordinary meaning, the word "discretion"

signifies unrestrained exercise of choice or will; freedom to act

according to one's own judgment; unrestrained exercise of will;

the liberty of power of acting without control other than one's

own judgment. But, when applied to public functionaries, it

means a power or right conferred upon them by law, of acting

officially in certain circumstances according to the dictates of

their own judgment and conscience, uncontrolled by the

judgment or conscience of others. Discretion is to discern

between right and wrong; and, therefore, whoever hath power to

act at discretion, is bound by the rule of reason and law. (See

Tomlin's Law Dictionary).

[21] Discretion, in general, is the discernment of what is right

and proper. It denotes knowledge and prudence, that

discernment which enables a person to judge critically of what is

correct and proper united with caution; nice discernment, and

judgment directed by circumspection; deliberate judgment;

soundness of judgment; a science or understanding to discern

between falsity and truth, between wrong and right, between

shadow and substance, between equity and colourable glosses

and pretences, and not to do according to the will and private

affections of persons. When it is said that something is to be

done within the discretion of the authorities, that something is to

be done according to the rules of reason and justice, not

according to private opinion; according to law and not humour.

It is to be not arbitrary, vague, and fanciful, but legal and

regular. And it must be exercised within the limit, to which an

honest man, competent to the discharge of his office ought to

confine himself (Per Lord Halsbury, LC, in Sharp v. Wakefield

(1891) Appeal Cases 173). Also (See S. G. Jaisinghani v. Union

of India and others (AIR 1967 SC 1427).

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[22] The word "discretion" standing single and unsupported by

circumstances signifies exercise of judgment, skill or wisdom as

distinguished from folly, unthinking or haste; evidently therefore

a discretion cannot be arbitrary but must be a result of judicial

thinking. The word in itself implies vigilant circumspection and

care; therefore where the legislature concedes discretion it also

imposes a heavy responsibility.

"The discretion of a Judge is the law of tyrants; it is

always unknown. It is different in different men. It is

casual, and depends upon constitution, temper,

passion. In the best it is often times caprice; in the

worst it is every vice, folly, and passion to which

human nature is liable." said (Lord Camden, LCJ, in

Hindson and Kersey (1680) 8 How St Tr 57).

[23] If a certain latitude or liberty is accorded by statute or rules

to a judge as distinguished from a ministerial or administrative

official, in adjudicating on matters brought before him, it is

judicial discretion. It limits and regulates the exercise of the

discretion, and prevents it from being wholly absolute,

capricious, or exempt from review.

[24] Such discretion is usually given on matters of procedure or

punishment, or costs of administration rather than with reference

to vested substantive rights. The matters which should regulate

the exercise of discretion have been stated by eminent judges in

somewhat different forms of words but with substantial identity.

When a statute gives a judge a discretion, what is meant is a

judicial discretion, regulated according to the known rules of

law,and not the mere whim or caprice of the person to whom it

is given on the assumption that he is discreet (Per Willes, J. in

Lee v. Budge Railway Co. (1871) LR 6 CP 576, and in Morgan

v. Morgan, 1869 LR 1 P and M 644).

22.In Ravinder Singh @ Ravi Pavar v State of Gujarat, (2013) 12 SCC 446,

Supreme Court observed,

[25]. Taking note of all these aspects, his antecedents, the

gravity and nature of offence, loss of human lives, the impact on

the social fabric of the society, his continuous involvement in

criminal activities while on bail, we are satisfied that respondent

(A-2) does not deserve to continue to remain on bail.

23.In State of Maharashtra v Pappu @ Suresh Budharmal Kalani, (2014) 11

SCC 244, Supreme Court holds,

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[14]. It is not in dispute that in spite of being acquitted in some

of the cases, still there are 15 cases in which trial is pending

against the respondent, out of which two cases are under

Sections 302 read with 120B, IPC. In the present case also,

initially along with charges under Sections 302/120B, IPC

offences punishable under TADA were also charged against the

respondent but later on the TADA charges were withdrawn.

Though we are not inclined to go into the matter in detail at

present to interfere in the order passed by the High Court, taking

into consideration the peculiar facts and circumstances of the

case, we are inclined to interfere and cancel the bail granted by

the High Court.

24.In Chandrakeshwar Prasad @ Chandu Babu v State of Bihar, (2016) 9

SCC 443, Supreme Court holds,

[13]. On a careful perusal of the records of the case and

considering all the aspects of the matter in question and having

regard to the proved charges in the cases concerned, and the

charges pending adjudication against the respondent-accused

and further balancing the considerations of individual liberty

and societal interest as well as the prescriptions and the

perception of law regarding bail, it appears to us that the High

Court has erred in granting bail to the respondent-accused

without taking into consideration the overall facts otherwise

having a bearing on the exercise of its discretion on the issue.

[14]. Judged on the entire conspectus of the attendant facts and

circumstances and considering the stage of the present case

before the trial court where charge-sheet has already been

submitted, together with pending proceedings against the

respondent-accused as on date, and his recorded antecedents in

the various decisions of this Court, we are thus unable to sustain

the impugned order of the High Court granting bail to him.

25.In Neeru Yadav v State of U.P., (2016) 15 SCC 422, Supreme Court, rejected

the bail granted by the High Court, by holding as follows,

[9]. On a perusal of the aforesaid list, it is quite vivid that the

respondent No. 2 is a history-sheeter and is involved in heinous

offences. Having stated the facts and noting the nature of

involvement of the accused in the crimes in question, there can

be no scintilla of doubt to name him a "history-sheeter". The

question, therefore, arises whether in these circumstances,

should the High Court have enlarged him on bail on the

foundation of parity.

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[10]. In Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3

SCC 598, it has been clearly laid down that the grant of bail

though involves exercise of discretionary power of the Court,

such exercise of discretion has to be made in a judicious manner

and not as a matter of course. The heinous nature of crimes

warrants more caution as there is a greater chance of rejection of

bail though, however, dependent on the factual matrix of the

matter.

[12]. In Prasanta Kumar Sarkar v Ashis Chatterjee, (2010) 14

SCC 496, while dealing with the court's role to interfere with the

power of the High Court to grant bail to the accused, the Court

observed that it is to be seen that the High Court has exercised

this discretion judiciously, cautiously and strictly in compliance

with the basic principles laid down in catena of judgments on

that point. The Court proceeded to enumerate the factors: -

"9. ... among other circumstances, the factors [which

are] to be borne in mind while considering an

application for bail are:

(i). whether there is any prima facie or reasonable

ground to believe that the accused had committed

the offence;

(ii). nature and gravity of the accusation;

(iii). severity of the punishment in the event of

conviction;

(iv). danger of the accused absconding or fleeing, if

released on bail;

(v). character, behaviour, means, position and

standing of the accused;

(vi). likelihood of the offence being repeated;

(vii). reasonable apprehension of the witnesses being

influenced; and

(viii). danger, of course, of justice being thwarted by

grant of bail."

[13]. We will be failing in our duty if we do not take note of the

concept of liberty and its curtailment by law. It is an established

fact that a crime though committed against an individual, in all

cases it does not retain an individual character. It, on occasions

and in certain offences, accentuates and causes harm to the

society. The victim may be an individual, but in the ultimate

eventuate, it is the society which is the victim. A crime, as is

understood, creates a dent in the law and order situation. In a

civilised society, a crime disturbs orderliness. It affects the

peaceful life of the society. An individual can enjoy his liberty

which is definitely of paramount value but he cannot be a law

unto himself. He cannot cause harm to others. He cannot be a

nuisance to the collective. He cannot be a terror to the society;

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and that is why Edmund Burke, the great English thinker, almost

two centuries and a decade back eloquently spoke thus: -

"Men are qualified for civil liberty, in exact

proportion to their disposition to put moral chains

upon their own appetites; in proportion as their love

to justice is above their rapacity; in proportion as

their soundness and sobriety of understanding is

above their vanity and presumption; in proportion as

they are more disposed to listen to the counsel of the

wise and good, in preference to the flattery of

knaves. Society cannot exist unless a controlling

power upon will and appetite be placed somewhere

and the less of it there is within, the more there must

be without. It is ordained in the eternal constitution

of things that men of intemperate minds cannot be

free. Their passions forge their fetters [Alfred

Howard, The Beauties of Burke (T. Davison,

London) 109].”

E. Barrett Prettyman, a retired Chief Judge of US Court of

Appeals had to state thus: -

"In an ordered society of mankind there is no such

thing as unrestricted liberty, either of nations or of

individuals. Liberty itself is the product of restraints;

it is inherently a composite of restraints; it dies when

restraints are withdrawn. Freedom, I say, is not an

absence of restraints; it is a composite of restraints.

There is no liberty without order. There is no order

without systematised restraint. Restraints are the

substance without which liberty does not exist. They

are the essence of liberty. The great problem of the

democratic process is not to strip men of restraints

merely because they are restraints. The great

problem is to design a system of restraints which

will nurture the maximum development of man's

capabilities, not in a massive globe of faceless

animations but as a perfect realisation, of each

separate human mind, soul and body; not in mute,

motionless meditation but in flashing, thrashing

activity [Speech at Law Day Observances

(Pentagon, 1962) as quoted in Case and Comment,

Mar-Apr 1963.]"

[15]. This being the position of law, it is clear as cloudless sky

that the High Court has totally ignored the criminal antecedents

of the accused. What has weighed with the High Court is the

doctrine of parity. A history- sheeter involved in the nature of

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crimes which we have reproduced hereinabove, are not minor

offences so that he is not to be retained in custody, but the

crimes are of heinous nature and such crimes, by no stretch of

imagination, can be regarded as jejune. Such cases do create a

thunder and lightening having the effect potentiality of torrential

rain in an analytical mind. The law expects the judiciary to be

alert while admitting these kind of accused persons to be at large

and, therefore, the emphasis is on exercise of discretion

judiciously and not in a whimsical manner.

26.In Ganesan v District Superintendent of Police, 2010 LawSuit(Mad) 4365,

Madras High Court observed,

[74]. …Even though the petitioner was lastly convicted in a

criminal case which according to him, was due to a family

dispute, there is no incriminating material between 2003 to

2007, that the petitioner had come to adverse notice between

2003 to 2007 and no details of any alleged occurrence, such as

involvement in a crime or aiding or abetting, is recorded.

27.In Thirumagan v Superintendent of Police, Madurai District, 2020

LawSuit(Mad) 519, (Para 36-E), Madras High Court observed,

[36-E]. In reckoning the number of cases for treating a person as

addicted to or habitually given to commit a crime, cases where

(i) the investigation agency has dropped a case, or (ii) where the

FIR was closed under Sec.468 Cr.P.C, by the Court which is

empowered to take cognizance of an offence on a Police report,

or (iii) where a history sheeter has been discharged or acquitted

by a competent Court, and/or (iv) quashed by this Court or by

the Hon'ble Supreme Court shall not be included. However,

those cases where the investigation or trial is pending, they can

be reckoned. This direction has no application to National

Registry maintained under the Criminal Law Amendment Act,

2018.

28.A survey of the judicial precedents about criminal history of a habitual offender

leads to the following inference:

a)A habitual offender or a person habitually addicted to crime is a criminal

by habit or by disposition formed by repeating crimes. -(Dhanji Ram Sharma v

Superintendent of Police, North District Delhi Police and Others, 1966

AIR(SC) 1766, Para 7).

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b)When a long-term sentence does not deter an accused to stop the criminal

activities, and the accused systematically continues the criminal acts, the same

would show that the accused is not amenable to the ordinary course of law. -

(D.M. Nagaraja v Government of Karnataka, Para 11 & 12).

c)The antecedents, gravity, and nature of the offence, loss of human lives,

the impact on society's social fabric, and continuous involvement in criminal

activities while on bail would lead to the satisfaction that the accused does not

deserve bail. -(Ravinder Singh @ Ravi Pavar v State of Gujarat, (2013) 12

SCC 446, Para 25).

d)An accused against whom many cases, including murder and terrorism,

are pending is not entitled to bail. -(State of Maharashtra v Pappu @ Suresh

Budharmal Kalani, (2014) 11 SCC 244, Para 14).

e)The grant or rejection of bail would depend upon proved and pending

charges against the accused and upon balancing the considerations of

individual liberty and societal interest and the prescriptions and the perception

of law regarding bail. -(Chandrakeshwar Prasad @ Chandu Babu v State of

Bihar, (2016) 9 SCC 443, Para 13 & 14).

f)With no scintilla of doubt to name the accused as a "history-sheeter"

involved in heinous offences and the nature of involvement of the accused in

the crimes, the accused not entitled to bail even on parity. -(Neeru Yadav v

State of U.P., (2016) 15 SCC 422).

g)Of the two situations, if on the one hand there is a lapse of time between

a man's last conviction and the commission of the offence; and if, on the other

hand, the time between a man's discharge from prison and the commission of

the subsequent crime is a very short, the Court may analyze that the accused is

leading a dishonest or criminal life persistently because of the mere fact that he

has again committed an offence so soon after his discharge from a previous

one. -(Vijay Narain Singh v State of Bihar, (1984) 3 SCC 14, Para 12).

h)In reckoning the number of cases for treating a person as addicted to or

habitually given to commit a crime, cases where (i) the investigation agency

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has dropped a case, or (ii) where the FIR was closed under Sec.468 CrPC, by

the Court which is empowered to take cognizance of an offence on a Police

report, or (iii) where a history-sheeter has been discharged or acquitted by a

competent Court, and/or (iv) quashed by this Court or by the Hon'ble Supreme

Court shall not be included. However, in those cases where the investigation or

trial is pending, they can be reckoned. This direction has no application to

National Registry under the Criminal Law Amendment Act, 2018.

(Thirumagan v Superintendent of Police, Madurai District, 2020 LawSuit

(Mad) 519, (Para 36-E), Madras High Court)

i)When anything is left to any person, Judge, or Magistrate to be done

according to his discretion, the law intends it must be done with sound

discretion, and what is just. – (Union of India v Kuldeep Singh, (2004) 2 SCC

590, Para 19 & 20).

j)Discretion of bail has to be made judiciously and not as a matter of

course or in a whimsical manner. The Courts cannot ignore the criminal

antecedents of the accused. The law expects the judiciary to be alert while

admitting these kinds of accused persons to be at large. -(Prasanta Kumar

Sarkar v Ashis Chatterjee, (2010) 14 SCC 496).

29.Per Section 437(1) CrPC, the Legislator mandates criminal history as an

essential element for consideration while granting bails. The summary of the above

judicial precedents also points out that criminal history of the accused is an important

factor while deciding bail petition. In reckoning the number of cases as criminal

history, the prosecutions resulting in acquittal or discharge; or when Courts quashed

the FIR; the prosecution stands withdrawn, or Prosecution filed a closure report;

cannot be included. The criminal history must be of cases where the accused was

convicted, including the suspended sentences and all pending First Information

Reports, wherein the bail petitioner stands arraigned as an accused. Taking a holistic

view while considering bail for a habitual offender, the following categories and

factors, apart from many more, may be relevant:

a)Criminal antecedents: When criminal history precedes the current

accusation, earlier incidents are relevant to find out that whether the past

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behaviour was a stimulant for the present conduct;

b)The gravity of past offences: How serious was the previous allegations?

How much was the loss of human lives;

c)Nature of offence: Murder and its attempt, terrorism, dacoity, poisoning;

d)Professional criminal: Supari killer, drug mafia, encroacher, bootlegger,

Gunda, badmash;

e)Habitual sexual offenders: Perverts, molesters, stalkers, voyeuristic,

those forcing children and women into prostitution, posting obscene and nude

pictures and videos on the internet, sexual assault etc.;

f)The impact on the State and social fabric of the society: Espionage,

dividing social fabric by practicing or promoting casteism, racism, and

fanaticism;

g)The brutality in the previous offence;

h)White-collar crimes: Online frauds, counterfeiting currency of any

State/Country, Ponzi schemes, thugs, fraudsters, scamsters, loan frauds, net

banking, credit card cheatings, corruption, bribe, financial bungling, money

laundering, wage theft, insider trading, labour racketeering, embezzlement,

cybercrime, copyright infringement, data theft, identity theft, and forgery;

i)Addiction to crime & conduct: Systematic and continuous involvement

of accused in criminal activities while on bail;

j)Accused is not amenable to the ordinary course of law: When even a

long-term sentence did not deter the accused from putting an end to the

criminal activities.

k)Not entitled to bail even on parity;

l)Lapse of time: When the time between discharge from prison and the

commission of the subsequent violation is very short, the Court may analyse

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that the accused is leading a dishonest or criminal life persistently.

30.In the present form of drafting, the penal statutes do not leave any scope for

using algorithms in sentencing. While considering each bail petition of the accused

with a criminal history, it throws an onerous responsibility upon the Courts to act

judiciously with reasonableness because arbitrariness is the antithesis of law.

Although crime is to be despised and not the criminal, yet for a recidivist, the

contours of a playing field are marshy, and graver the criminal history, slushier the

puddles.

31.The present accusation against the petitioner is possessing 15.290 Kg of poppy

straw, which is an intermediate quantity.

32.The petitioner's criminal history points out that in one case, the volume of the

heroine was 2.2 grams, whereas lesser than 5 grams is a small quantity. In the other

case, the weight of poppy straw was 3 kg, whereas the quantity greater than 1 kg is

intermediate. For possessing 3 kg of poppy straw, he underwent a sentence of 40

days, and for possessing 2.2 grams of heroin, the punishment of 4 days. In all, the

petitioner has experienced just 44 days of the sentence, which is less than the

incarceration period already spent in this FIR.

33.The possibility of the accused influencing the investigation, tampering with

evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken

care of by imposing elaborative and stringent conditions. In Sushila Aggarwal,

(2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the

evidence produced, the Courts can impose restrictive conditions.

34.Given the above reasoning, the Court is granting bail to the petitioner, subject

to strict terms and conditions, which shall be over and above and irrespective of the

contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

35.In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734

of 2020, after analyzing the judicial precedents, this Court observed that any Court

granting bail with sureties should give a choice to the accused to either furnish surety

bonds or give a fixed deposit, with a further option to switch over to another.

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36.Given above, the petitioner shall be released on bail in the FIR mentioned

above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR

25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the

Judicial Magistrate having the jurisdiction over the Police Station conducting the

investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting

the sureties, the concerned Magistrate/Attesting Officer must satisfy that in case the

accused fails to appear in Court, then such sureties are capable to produce the

accused before the Court, keeping in mind the Jurisprudence behind the sureties,

which is to secure the presence of the accused.

37.In the alternative, the petitioner may furnish aforesaid personal bond and fixed

deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favor of "Chief

Judicial Magistrate, District Kangra, H.P.," Such Fixed deposits may be made from

any of the banks where the stake of the State is more than 50%, or any of the stable

private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the

clause of automatic renewal of principal, and liberty of the interest reverting to the

linked account. Such a fixed deposit need not necessarily be made from the account

of the petitioner and need not be a single fixed deposit. If such a fixed deposit is

made in physical form, i.e., on paper, then the original receipt shall be handed over to

the concerned Court. If made online, then its printout, attested by any Advocate, and

if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled. The petitioner or his Advocate shall inform at the

earliest to the concerned branch of the bank, that it has been tendered as surety. Such

information be sent either by e-mail or by post/courier, about the fixed deposit,

whether made on paper or in any other mode, along with its number as well as FIR

number. After that, the petitioner shall hand over such proof along with endorsement

to the concerned Court. It shall be total discretion of the petitioner to choose between

surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa. Subject to the

proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with

interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court

shall have a lien over the deposits up to the expiry of the period mentioned under S.

437-A CrPC, 1973, or until discharged by substitution as the case may be.

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38.The furnishing of the personal bonds shall be deemed acceptance of the

following and all other stipulations, terms, and conditions of this bail order:

a)The petitioner to execute a bond for attendance to the concerned

Court(s). Once the trial begins, the petitioner shall not, in any manner, try to

delay the proceedings, and undertakes to appear before the concerned Court

and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in

terms of Section 437-A CrPC.

b)The attesting officer shall, on the reverse page of personal bonds,

mention the permanent address of the petitioner along with the phone

number(s), WhatsApp number (if any), e-mail (if any), and details of personal

bank account(s) (if available) and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about

the change of residential address and change of phone numbers, WhatsApp

number, e-mail accounts, to the Police Station of this FIR to the concerned

Court.

c)The petitioner 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 of the case, to

dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

d)The petitioner shall join the investigation as and when called by the

Investigating Officer or any Superior Officer. The petitioner shall cooperate

with the investigation at all further stages as may be required. In the event of

failure to do so, it will be open for the prosecution to seek cancellation of the

bail granted by the present order. Whenever the investigation occurs within the

police premises, the petitioner shall not be called before 8 AM and shall be let

off before 5 PM, and shall not be subjected to third-degree, indecent language,

inhuman treatment, etc.

e)In addition to standard modes of processing service of summons, the

concerned Court may serve the accused through E-Mail (if any), and any

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instant messaging service such as WhatsApp, etc. (if any). [Hon’ble Supreme

Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ

Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]. The concerned

Court may also inform the accused about the issuance of summons, bailable

and non-bailable warrants through the modes mentioned above.

i.At the first instance, the Court shall issue the summons.

ii.In case the petitioner fails to appear before the Court on the specified

date, in that eventuality, the concerned Court may issue bailable

warrants.

iii.Finally, if the petitioner still fails to put in an appearance, in that

eventuality, the concerned Court may issue Non-Bailable Warrants to

procure the petitioner's presence and may send the petitioner to the

Judicial custody for a period for which the concerned Court may deem

fit and proper to achieve the purpose.

40.The petitioner shall surrender all firearms, ammunition, if any, along with the

arms license to the concerned authority within 30 days from today. However, subject

to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to

renew and take it back in case of acquittal in this case.

41.During the trial's pendency, if the petitioner repeats or commits any offence

where the sentence prescribed is seven years or more or violates any condition as

stipulated in this order, the State may move an appropriate application before this

Court, seeking cancellation of this bail. Otherwise, the bail bonds shall continue to

remain in force throughout the trial and after that in terms of Section 437-A of the

CrPC.

42.Any Advocate for the petitioner and the Officer in whose presence the

petitioner puts signatures on personal bonds shall explain all conditions of this bail

order, in vernacular and if not feasible, in Hindi.

43.In case the petitioner finds the bail condition(s) as violating fundamental,

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human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before

this Court, and after 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 condition.

44.This order does not, in any manner, limit or restrict the rights of the Police or

the investigating agency from further investigation per law.

45.Any observation made hereinabove is neither an expression of opinion on the

merits of the case, nor shall the trial Court advert to these comments.

46.In return for the protection from incarceration, the Court believes that the

accused shall also reciprocate through desirable behavior.

47.I express my gratitude to Ld. Amicus Curiae Ms. Shilpa Sood Advocate for

excellent assistance and outstanding research.

48.There would no need for a certified copy of this order for furnishing bonds,

and any Advocate for the Petitioner can download this order from the official web

page of this Court and attest it to be a true copy. In case the attesting officer or the

Court wants to verify the authenticity, such an officer can also verify its authenticity

and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

(Anoop Chitkara)

Judge.

Jan 1, 2021 (mamta/ps/ks)

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