TaxTMI 
TaxTMI 
2022 (1) TMI 1259
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....that three persons, who were present in a room, are involved in drug trafficking, 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 Psychotro....
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....in S. 37 of NDPS Act. When the quantity is less than commercial, the restrictions 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. ....
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.... deposits in place of cash while granting bail under S. 439 Cr.P.C. to the accused with an option to give a fixed 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 accu....
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....;Z' neither would like to stand as someone's surety nor ask a stranger to stand as their surety. Against this backdrop, the 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....
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....ntial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which 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 ....
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....o execute a bond in case where he may not be able to find a surety.... 30. In State of Mysore v. H. VenkataramaKotaiyah, 1968 Cr.L.J. 696, Mysore High Court observed, [4]. Section 513, Criminal P.C. states that when any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer, may, except in the case of a bond for good 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 ha....
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....hand, it shall be in the aid of giving effect to the very object behind the discretion. 34. In Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109 Orissa High Court observed: [10]. ...From this it can be reasonably inferred that it is not the 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 36....
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....executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu 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....
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....nder Section 437, 439 of Cr.P.C., it is not that the Courts have no power to impose such bail condition. But the condition should not be imposed for the sake of imposing condition. It must have some objective. It must be reasonable. It should not be oppressive in nature. It should be performable, executable. In imposing condition, the 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 ....
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.... or whimsical manner and the discretion exercised shall appear to be just and reasonable one. It is the duty of the Court to see that any order to be passed or conditions to be imposed while granting bail shall always be in the interest of both the accused and the State. 44. In Ubaidulla v. State of Kerala, (Crl.M.C. No. 3400 of 2020, decided on 5-8-2020), Kerala High Court 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 Uttarakh....
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....981 Cr.L.J. 229, Para 14]. (j) The cash deposit is equally efficacious as other systems because of Section 445 Cr.P.C. [Maha Ahmad Yusuf v. State of U.P., 2015 (5) R.C.R. (Criminal) 13, Para 6]. (k) This provision is meant to benefit the person who is required to execute a bond in a case where he may not be able to find a surety. [Niamat Khan v. Crown, 1949 Law Suit (Nag) 42, Para 4]. (l) The foreign national accused who cannot furnish a local 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 dat....
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.... choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or creating a lien over his bank account. The accused should also have a further option to switch between the modes. The option lies with the accused to choose between the sureties and deposits and not with the Court or the arresting officer. 54. Given above, the applicant shall be released on bail in the case mentioned above, subject to his furnishing 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 fav....