Mr. Anoop Chitkara, J. - 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, 1973 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 Section 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.
2. Earlier, the petitioner had filed a petition under section 439 CrPC, 1973 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 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.
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 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. Section 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 Section 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 Section 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 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 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 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 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.
[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.
[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,
[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.
[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 (S) v. Ashis Chatterjee & Anr. (S), (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; 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 crimes which we have reproduced here-in-above, 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 Section 468 Cr.P.C,, 1973 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).
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 has dropped a case, or (ii) where the FIR was closed under section 468 CrPC, 1973 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 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 (S) v. Ashis Chatterjee & Anr. (S), (2010) 14 SCC 496).
29. Per section 437(1) CrPC, 1973 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 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 chantings, 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 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, CrM PM 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.
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 section 446 CrPC, 1973 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 Section 437-A CrPC, 1973, or until discharged by substitution as the case may be.
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 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, 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 here-in-above 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 behaviour.
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.
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