2022 (1) TMI 1259 - HC - Indian Laws

Furnishing fixed deposits in place of cash for grant of Bail - whether it can be an option in every case that accused instead of furnishing surety, either handover a fixed deposit in favour of the Court or electronically transfer the bond money in the account of the Court; where such facility is available? - HELD THAT - 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. It is beyond cavil that the sole purpose of a bond is to ensure the accused's presence to attend the trial and surrender to undergo the sentence of imprisonment. The Courts insist upon sureties to prevent impersonation. Furthermore, it is easier for a local surety to identify and trace the accused. The most prominent factor for the prevalence of local surety was the pressure from within the community of the accused, which would make them appear before the Courts. However, with the advent of identification through AADHAR, starting from 2010, the problems of concealment of identities or impersonation have been resolved - if the legislative intention was only to use cash deposit, then using the word money was sufficient, and there was no requirement to use the word Government promissory notes . Thus, the words Government promissory notes denote something other than money because money is currency notes, and even its most expansive definition would again include currency notes. Therefore, in no case, the term money would exclude currency notes. So, what was the need for the legislature to use the term Government promissory notes specifically . A promissory note is a financial instrument wherein the drawer promises a definite sum of money to its drawee or the bearer, either on-demand or at a specified future date. It is something other than money, i.e., currency notes. Thus, the legislature never expressly stopped fixed deposits from being taken as a promise of appearance before the concerned Court. The pragmatic approach is that while granting bail with sureties, the Court and the Arresting Officer should give a 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. The furnishing of the personal bonds shall be deemed acceptance of the all stipulations, terms, and conditions of this bail order. Application allowed.

Summary

Issues Involved:
1. Suspension of Sentence under Section 389 CrPC.
2. Applicability of Section 37 NDPS Act.
3. Legal Provisions and Precedents on Bail and Surety.
4. Constitutionality of Section 32A NDPS Act.
5. Option of Fixed Deposit in place of Surety Bonds.

Issue-wise Detailed Analysis:

1. Suspension of Sentence under Section 389 CrPC:
The applicant, convicted for possessing 220 grams of heroin and sentenced to ten years imprisonment with a fine of Rs. One Lac, sought suspension of the sentence during the appeal's pendency under Section 389 CrPC. The Court noted that the applicant had already served two years of the sentence and had not absconded during the trial, which justified considering the suspension of the sentence.

2. Applicability of Section 37 NDPS Act:
The Court examined the applicability of Section 37 NDPS Act, which imposes stringent conditions for bail in cases involving commercial quantities of narcotics. It was determined that the quantity involved (220 grams of heroin) was less than the commercial quantity (250 grams), thus, the restrictions of Section 37 NDPS Act did not apply. The Court referenced the Supreme Court's judgment in Sami Ullaha v. Superintendent Narcotic Control Bureau, which held that the rigors of Section 37 might not be justified for intermediate quantities.

3. Legal Provisions and Precedents on Bail and Surety:
The Court discussed various legal provisions and judicial precedents concerning bail and surety. It emphasized that the primary purpose of bail is to ensure the accused's presence at trial, not to secure payment to the State. The Court cited multiple judgments, including Moti Ram v. State of M.P. and Hussainara Khatoon v. Home Secretary, State of Bihar, which supported the view that bail conditions should not be oppressive and should consider the accused's financial capacity.

4. Constitutionality of Section 32A NDPS Act:
The Court referred to the Supreme Court's judgment in Dadu @ Tulsidas v. State of Maharashtra, which declared Section 32A NDPS Act unconstitutional to the extent it ousted the Court's jurisdiction to suspend the sentence. The judgment clarified that appellate courts retain the power to suspend sentences awarded under the NDPS Act, subject to the conditions specified in Section 37.

5. Option of Fixed Deposit in place of Surety Bonds:
The Court analyzed the feasibility of allowing accused persons to furnish fixed deposits instead of surety bonds. It referenced various High Court judgments, including Abhishek Kumar Singh v. State of Himachal Pradesh and Manish Lal Srivastava v. State of Himachal Pradesh, which permitted fixed deposits as an alternative to surety bonds. The Court highlighted that the legislative intent under Section 445 CrPC allows for such flexibility and that technological advancements have mitigated concerns about impersonation and identity verification. The Court concluded that offering the option of fixed deposits or electronic transfers aligns with modern realities and legislative intent.

Conclusion:
The Court allowed the application for suspension of the sentence, subject to the applicant furnishing a personal bond and either surety bonds or a fixed deposit. The applicant was required to comply with additional conditions, including surrendering weapons, procuring a smartphone, and keeping the phone's GPS on. The Court emphasized that the conditions imposed were to ensure the applicant's presence and compliance with bail terms, reflecting a balance between individual liberty and the State's interest.