Anjali vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 Code of Criminal Procedure (for short Cr.P.C.) for enlarging her on bail in case FIR No.91 of 2021, dated 18.4.2021, registered in Police Station Sadar, District Kullu, Himachal Pradesh, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

Status report stands filed. Record was also made available.

As per Status Report, on 18.4.2021 at 3.50 p.m., during patrolling in routine and for detection of crime, Police Party, present at NHPC Colony Manikarn, received information from reliable informer that Anjali, i.e. petitioner, wife of Thaman, resident of Kasol, Tehsil Bhuntar, District Kullu, aged 36 years, was doing business of selling Charas in her Shagun Dhaba located at Kasol and in case of raiding her shop immediately huge quantity of Charas can be recovered and in case of delay the contraband may be concealed.

On receiving aforesaid information, report/ information was sent to superior Officer, i.e. Additional Superintendent of Police, as prescribed under Section 42(2) of the NDPS Act. At Kasol, two persons, namely Om Parkash and Ravinder, were associated in the raiding party after telling them about the information received and, thereafter, raid was conducted at Shagun Dhaba of petitioner, where a woman was found sitting at the counter, who disclosed her identity as Anjali. She was informed about the information received by the police and Shagun Dhaba, having total three rooms, was searched. During search, in store room, a carry bag was found wherein two rectangular packets and five round-shaped packets, containing black-coloured substance, were found. On smelling, it appeared to be Charas and on weighing it was found to be 1.312 kgs. After taking in possession, the contraband was seized and Ruka was sent to the Police Station, on the basis of which FIR was registered and investigation carried out and petitioner was arrested at 9 p.m.

As per Status Report, petitioner is resident of Nepal and despite asking about her address of Nepal, repeatedly, during her police remand, she did not disclose about her permanent address.

Challan has been presented in the Court on 16. 6.2021 and now the case is at the stage of recording evidence.

Learned Additional Advocate General has opposed the grant of bail on the ground that the petitioner has been found in possession of commercial quantity of Charas and she was found present in the shop/Dhaba and, therefore, she is to be considered in constructive possession of shop/Dhaba as well as the Charas recovered from the Dhaba and further that petitioner is permanent resident of Nepal and there is every possibility of her fleeing from justice as she has not disclosed her permanent address of Nepal and, thus, in case she is enlarged on bail and she leaves India, then it would be impossible to trace/search her.

Learned counsel for the petitioner has submitted that the petitioner is not owner or proprietor of the shop concerned, but the same is being run by her husband, but he has not been arrayed as an accused in the present case and the petitioner, after calling her from her residence, has been arrayed as an accused for alleged recovery of contraband from the shop being run by her husband. Further that, shop/ Dhaba being run by the husband of petitioner is a public place, open for all, and for the nature of the business, i.e. Dhaba/ Restaurant, large number of customers use to come to Dhaba and anyone of them may keep the bag alleged to have been recovered from Dhaba. Further that, the prosecution story is silent about presence or absence of any customer present in the Shop at the time of raiding the same, which creates doubt about claim of prosecution.

It has been further contended that the police has presented the challan in the Court and copy thereof has been given to the petitioner and alongwith challan four photographs, relied upon by prosecution, have also been enclosed. According to the learned counsel for the petitioner, in the photographs, neither petitioner nor her husband or any other third person present in the shop/Dhaba has been photographed, except one person, in one photograph, claimed to be eyewitness to the recovery, and further that even any member of Police Party is not visible in these photographs, which also leads to a definite conclusion that prosecution story, as propounded in the FIR and challan, is different than the true story and relevant material and true facts are being concealed in order to frame the petitioner falsely, despite the fact that she is neither owner nor manager of the shop/Dhaba concerned.

Learned counsel for the petitioner has also contended that it is not a case where police was not having camera. Claim of the police is that camera was there and the photographs of the contraband were clipped on the spot, but the photographs placed on record are creating doubt about claim of prosecution for absence of Police Party as well as accused therein. It has been further contended that despite having camera and mobile phones, no videography with respect to alleged recovery of contraband has been placed on record, only for the reason that entire prosecution story is concocted story.

Learned counsel for the petitioner has also submitted that Jamatalashi of petitioner was taken without complying with the provisions contained in Section 50 of NDPS Act.

Learned Additional Advocate General has submitted that personal search of the petitioner was not conducted during search and seizure procedure, but after her arrest only as provided under law and, therefore, at that time no compliance of Section 50 of NDPS Act was required, as search was conducted under prescribed procedure pertaining to search/Jamatalashi and, therefore, plea of the petitioner that there is no compliance of Section 50 of NDPS Act is not tenable. It has further been submitted that the videography of the investigation is not compulsory and, therefore, Police Party has not committed any illegality.

It has been contended on behalf of the petitioner that even if case of the prosecution is admitted to be true, then too shop/Dhaba was rented by owner to Thaman Pun, husband of the petitioner, and he was running the same on the spot and that the petitioner is neither tenant nor owner of the shop, but being wife of Thaman Pun has no other option but to live with her husband under one roof. Though reverse burden under the NDPS Act is upon the petitioner to prove that she has no knowledge regarding presence of the contraband and she was not in conscious possession thereof, but it has been contended that petitioner is wife of Thaman Pun and her presence in the residence and in the shop of her husband definitely had to be construed in natural course and there is no overt act on the part of the petitioner, as alleged by the Investigating Agency, committed by the petitioner in obtaining, selling or supplying the Charas. It has been further submitted that mere presence of wife in the shop of her husband, in absence of her husband, would not lead to an automatic inference that she was having any knowledge about the contraband allegedly recovered from the ship/Dhaba.

It has been further contended that there is no material on record from which it can be construed, at this stage, that petitioner was in joint possession of the contraband alongwith her husband or she was in exclusive possession of contraband or was in control of the place from where the contraband was allegedly recovered.

Learned counsel for the petitioner has submitted that keeping in view the quantity of contraband alleged to have been recovered, period of detention and also the fact that she is neither owner nor manager of the shop/Dhaba and the shop/Dhaba was a public place, open for all, where anybody may put/plant anything. Further that in the Status Report Investigating Officer himself has mentioned that informer had informed not only that Anjali was owner of the shop, etc. but also name of her husband, place of her residence as well as her exact age, which indicates that it is not a case where informer supplied the information to the police, first of all, but the police had already met the petitioner and inquired her about name of her husband, place of residence as well as her age, otherwise there was no occasion for informer to verify and inform exact age of petitioner and also for the prosecution/Investigating Officer to mention not only name of the petitioner but also her address alongwith her exact age.

Complete identification, including name and age of the petitioner, has also been mentioned in information sent to Additional Superintendent of Police, under Section 42(2) of the NDPS Act. Certificate of the Landlord as well as Agreement between Landlord and Thaman Pun (husband of petitioner), regarding renting the shop/Dhaba to Thaman, have also been placed on record, which have not been disputed by the other party, but it has been contended that it is not always necessary or possible for the wife to know about any packet or luggage kept by her husband or anybody else and, therefore, it has been contended that petitioner has been wrongly implicated in the present case.

It has been submitted on behalf of the petitioner that family of petitioner is permanently residing in village Kasol and for earning their livelihood running a shop/Dhaba there and, therefore, opposition to grant bail to the petitioner, being permanent resident of Nepal, is not sustainable as the petitioner and her husband are residing in District Kullu, Himachal Pradesh, since long and doing business of Dhaba/Restaurant at Kasol and there is no possibility of the petitioner fleeing from justice and petitioner undertakes to abide by any condition, which may be imposed by the Court, in case of her release on bail, including furnishing of local sureties for assuring her presence during trial.

Learned counsel for the petitioner has also submitted that petitioner is a woman and, in the facts and circumstances, she is also entitled for benefit of provisions of Section 437 Cr.P.C., which provides release of woman even in those cases where otherwise a person is not to be enlarged on bail. It has been canvassed that guilt of the petitioner is yet to be proved in trial and, during trial, for submissions made hereinabove, petitioner deserves to be enlarged on bail.

Learned Additional Advocate General has submitted that quantity of charas recovered in present case is of commercial quantity and, thus, petitioner, who is involved in commission of heinous crime which causes damage to individuals, their families as well as society, is not entitled for bail. Hence, grant of bail has been opposed vehemently.

Taking into consideration the entire facts and circumstances, but without commenting on merits of the rival contentions of the parties, and taking into account factors and parameters, as propounded by the Courts, including Supreme Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case, at this stage.

Accordingly, the petition is allowed and petitioner is ordered to be released on bail, on her furnishing personal bond in the sum of `1,00,000/- with two sureties each in the like amount, one which should be, as undertaken by the petitioner, local surety, to the satisfaction of Trial Court, upon such further conditions as may be deemed fit and proper by the Trial Court, including the conditions enumerated hereinafter, so as to assure presence of petitioner at the time of trial and also subject to following further conditions:-

(i) That the petitioner shall make herself available to the police or any other Investigating Agency or Court in the present case as and when required, in accordance with law;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. She shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which she is accused or suspected;

(v) that the petitioner shall not misuse her liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for her availability to Police and/or during trial;

(viii) the petitioner shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any conditions imposed upon her, her bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.

The parties are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the passing of order from the High Court website or otherwise.

Petition stands disposed of in the aforesaid terms.