TaxTMI 
TaxTMI 
2022 (1) TMI 1259
X X X X Extracts X X X X
X X X X Extracts X X X X
....fficking, and at that point of time if a raid is conducted, they could be apprehended. After completing the procedural requirements, the police raided the said place and found two persons, including the applicant-Mahidul Sheikh. The room was searched in the presence of the owner of the premises, and one bag was found. The search of the bag led to the recovery of 220 grams of heroin. Apart from that, the police also allegedly recovered Rs. 14,39,780/-. Subsequently, the police registered the FIR captioned above and arrested the accused. During the trial, learned Special Judge allowed the prosecution and convicted the applicant under Section 21(b) NDPS Act. The Court sentenced him to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year further. The cash amount recovered was ordered to be forfeited to the State. 3. Learned Counsel for the applicant-convict argued that the quantity of 220 grams of heroin (Diacetylmorphine) is less than commercial and thus, rigors of section 37 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) do not apply, and application for susp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to those under any regular offence. 8. As per the table, prescribing small and commercial quantities, annexed with the notification issued under NDPS Act, quantity greater than 250 grams of heroin falls in the commercial quantity. The weight of the heroin allegedly involved in the present case is 220 grams, which is less than the commercial quantity. Given this, the restrictions of Section 37 of the NDPS Act do not apply in the present case. 9. In Sami Ullaha v. Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigours of the provisions of Section 37 may not be justified. 10. The applicant has undergone approximately one year during the trial. After that from the date of sentencing, that is w.e.f. 13.01.2020, he is continuing in prison. Thus, the applicant has completed two years of the sentence. A Coordinate Bench of this Court, while admitting the appeal against conviction, had stayed recovery of fine during its pendency. 11. The convict did attend the trial and committed himself to Court to face the sentence. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....deposit in place of surety. In Manish Lal Srivastava v. State of Himachal Pradesh, CrMP(M) 1734 of 2020, ICL 2020 (12) HP 496, the scope of deposits was analyzed under S. 438 Cr.P.C. 16. Grant of bail, which includes suspension of sentence, is a promise by the accused to the Court to attend the trial and comply with the conditions stipulated in the order. The accused accepts such a contract by furnishing bail bonds, and so do their sureties, undertaking to produce the accused before the concerned Court if they default to appear. Section 74 of the Indian Contract Act, 1972, provides compensation for breach of contract where a penalty is stipulated. The perfect insight is its illustration (c), which reads as follows, "A' gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty." 17. In Pillappan @ Ravikumar v. State, 2018 Law Suit (Mad) 1475, Madras High Court observed, [15]. By virtue of Sec. 89 of the Code, the Court records the absence of the accused and issues a warrant to secure his presence. By his non appearance followed up with the act of the Court in issuing the n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he youth neither appears inclined to take favours nor return. Given this, requesting someone to stand as surety might be seeking favours and may not appeal to the younger generation. 20. The menace of securing sureties by payment is well known within the legal fraternity. The people have established a flourishing business of procuring sureties. Substituting surety with fixed deposit or bank transfer or bank lien is likely to address the corrupt system of unscrupulous stock sureties, throwing them out of highly questionable and unethical practices. The monetary bail has the edge over surety bonds, given unique identity details, electronic passports, face recognition gadgets, and GPS location. The technology has obsoleted the identification through sureties. 21. It appears that the Legislature was conscious of the menace of stock sureties, and probably to curb it, the Parliament, vide amendment of 2005, inserted S. 441-A Cr.P.C., 1973, which reads as follows: "441-A. Declaration by sureties. - Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties.... 26. In Moti Ram v. State of M.P., (1978) 4 SCC 47, Supreme Court, after referring to the provision for suspension of sentence of those convicted by trial Courts, holds, [27]. The slippery aspect is dispelled when we understand the import of Section 389(1) which reads: 389(1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. The Court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is worse off than a convict or that the po....
X X X X Extracts X X X X
X X X X Extracts X X X X
....when any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer, may, except in the case of a bond for good behavior, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix, in lieu of executing such bond. According to this section, if the accused wants to deposit any sum of money, it is open to the Court to accept the same. But the law does not empower the Court to insist on cash deposit to be made by the accused. 31. In Krishna Kumar and others v. State of Karnataka, 1979 SCC OnLine Kar 118, [3]. It is also clear that on the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused persons to furnish cash deposit in lieu of the bond or sureties that the Court may make an order under Section 445. In the instant case, it is clear from the orders that the learned Magistrate has asked for securities in all the forms available under both the sections which is impermissible. 32. In Gokul Das v. The State of Assam, 1981 Cr.L.J. 229, Gauhati High Court observed, [14]. From the relevant provisions of the Cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties. 35. In Charles Shobhraj v. State, 1996 (63) DLT 91, Delhi High Court observed, [6]. But then, all said and done, a few things need to be noticed. The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State, for that is a secondary consideration, but to secure the presence of a person facing trial. Thus the primary consideration is the personal element of the surety or sureties concerned as the Court expects the surety to see that the accused appears on the date fixed and also that the surety will take steps for getting the accused arrested in case of any attempt on the part of the accused to abscond or to avoid attendance in Court. As observed by Alvorstone, Lord Chief Justice of England in King v. Porter, (1910) I KB 369, it is to the interest of the public that criminals should be brought to justice, and therefore that it should be made as difficult as possible for a criminal to abscond. Responsibility is fixed on the sureties to see that such a person does not escape. A duty is th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of executing such bond, under Section 445, Cr.P.C. 37. In Shokhista v. State, 2005 LawSuit (Del) 1316, Delhi High Court observed, [5]. ...The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I.T.P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so. Consequently, I admit the Petitioner to bail on her furnishing a personal bond in the sum of Rs. 20,000/- and a cash deposit of the like amount in lieu of the surety to the satisfaction of the Trial Court. The Petitioner shall not leave the country without prior permission of the trial court and shall deposit her pass-port with the trial court. 38. In Srinjay Kumar Singh v. State of Nagaland, 2007 (32) R.C.R. (Cr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Court must take into account the individual's position, financial capacity and his role in the case. 41. In Navaneetha Krishnan v. State, 2015 (2) Mad WN (Cri) 53, Madras High Court observed, [17]. While granting bail, the Court can direct the accused to execute bail bond. As per Section 440 Cr.P.C., 1973 the bond amount should not be excessive. When a person so directed to execute the bond either with surety or without surety is not able to furnish the sureties, then under Section 445 Cr.P.C., 1973 he has the option to offer cash security. But even then, it must be a reasonable amount. It should not be an arbitrary, excessive amount. It should not be in the nature of deprivation of grant of bail by fixing a heavy amount as surety amount. If heavy amount is directed to be deposited as cash security, the bailee/accused will not be in a position to comply it. If heavy amount is demanded from the surety, then the bailor will not be forthcoming. And 'haves' will go out, while 'have nots' will remain in jail. [18]. Reading sections 440, 441 and 445 Cr.P.C., 1973 together, it is clear that straightaway a Court cannot direct the accused to deposit cash security....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt observed, (5). I find merit in the submissions made by the learned counsel for the petitioner. The very purpose of Section 445 Cr.P.C., 1973 providing for deposit instead of recognizance, is to ensure that a person is not denied an opportunity to be enlarged on bail merely for the reason that he is unable to execute bond, with or without sureties. Section 445 Cr.P.C., 1973 provides for deposit of a sum of money or Government Promissory Note to such amount as the Court may fix in lieu of executing the bond. 45. In Yan Hao v. State of Telangana, (Criminal Petition No. 1966 of 2021, decided on 23.3.2021), Telangana High Court permitted a Chinese national to furnish two cash sureties of Rs. 10,000/- each apart from a personal bond amount of similar amount. 46. In David Morrison v. State of Uttarakhand, 2021 (1) Crimes 230, Uttarakhand High Court permitted to deposit the cash amount. 47. From the survey of the judicial precedents mentioned above, the following fundamental principles of law relating to the choice of the accused to furnish surety bonds or secure recognizance by depositing a sum of money or Government promissory notes emerge: (a) The object of requiring an accuse....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... surety is not debarred from being admitted to bail. [Shokhista v. State, 2005 Law Suit (Del) 1316, Para 5]. (m) It is not the mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties. [Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109, Para 10]. SUBSTITUTION OF BONDS AT ANY STAGE: 48. In Sajal Kumar Mitra v. State of Maharashtra, 2011 Cr.L.J. 2744, High Court of Bombay observed, [10]. In my view, the learned Magistrates have power to release the accused on bail initially on furnishing cash bail and, thereafter, asking him to furnish solvent sureties in appropriate cases. 49. There is an absence of comprehensive data demonstrating the role of sureties in bringing the accused to justice. It is also true that the purpose of a cash bond is not to enrich the State's coffers but to secure the accused's presence. Mere recovery of surety amount by way of penalty is not equivalent of producing the accused to face trial. 50. S. 445 Cr.P.C. mandates an accused to execute bonds by officers and Courts, with or without sureties. An officer directs an accused to execute bonds only when the Court issues Ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urnishing a personal bond of Rs. Rs. One Lac (INR 1,00,000/-), and furnishing of two sureties of Rs. Five lacs each (INR 5,00,000/-), to the satisfaction of the concerned Trial Court/Duty Magistrate. Before accepting the sureties, such Court 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. 55. In the alternative, the petitioner may furnish a personal bond of Rs. One Lac (INR 1,00,000/-), and hand over to the attesting Magistrate, a fixed deposit(s) for Rs. One Lac only (INR 1,00,000/-), made in favour of Chief Judicial Magistrate of the concerned district. 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 well-established and stable private banks, with the clause of automatic renewal of principal, and the interest reverting to the linked account. 56. Such a fixed deposit need not necessarily be made from the account of the applicant. If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall....