Anu Rana vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court by invoking provisions of Section 439 of Cr.P.C., seeking regular bail in case FIR No. 90 of 2021, dated 14.6.2021, registered in Police Station Gagret, District Una, H.P. under Sections 20, 21, 29 and 8C of Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Status report stands filed, wherein circumstances, in which, on 14.06.2021, 4 Kg 846 gram charas has been recovered from the land adjacent to the residence of petitioner, have been narrated in detail.

It is case of the prosecution that husband of petitioner was apprehended along with 5.64 grams Chita while he was trying to flee from the spot on seeing the Police and during interrogation Arvind Rana disclosed that he was not involved in selling/purchasing chitta/heroin but was dealing in business of charas. In the meanwhile, by that time, a reliable information was also received that he (Arvind Rana) i.e. husband of the petitioner was involved in selling charas from his house and there was possibility of recovery of huge quantity of Bhang/ charas from his house and, therefore, house of petitioner and her husband was raided by the Police in presence of Ward Member and Up Pradhan of Gram Panchayat Kuthera Kheria. During raid, 86 grams yellow metal like Gold, 195 grams white metal like Silver, small electronic weighing machine and currency notes of `1,70,495/- were recovered. Apart from recovery of aforesaid articles and money, 1 Kg 460 grams charas was also recovered from a pit beneath the floor under old iron counter and 3 Kg 386 grams charas was recovered from a pit under the Mango tree in the courtyard of the house and as such total 4 Kg 846 grams charas was recovered. As per status report, charas recovered from the pits was concealed immediately before the raid as there were signs of fresh digging. As per prosecution case, during interrogation petitioner had disclosed that after receiving information about arrest of her husband, she had concealed the charas lying in the house to avoid recovery thereof.

Learned counsel for the petitioner has submitted that even if it is presumed to be true that husband of the petitioner was found in possession of 5.64 grams Chita and was involved in selling charas, then also there is no iota of evidence on record so as to implicate the petitioner in present case and she has been implicated only on the basis of her alleged admission during interrogation that she concealed the contraband to save her husband which is not sufficient to implicate and convict her. It is also submitted that at one place in the status report it is stated that small electronic weighing machine was recovered from the room, whereas at other place it has been stated that petitioner had admitted that she had thrown electronic weighing machine in the plot and either of these versions is false or both the versions are false, and further that nothing has been recovered from the conscious possession of the petitioner.

Learned Additional Advocate General has submitted that this is a case where 4 Kg 846 grams charas has been recovered from the house where petitioner was residing therefore, rigors of Section 37 of NDPS Act are also applicable in the present case.

Petitioner had also approached this Court by filing Cr.MP(M) No.1523 of 2021 which was dismissed on 9.11.2021, with observation that keeping in view quantity of Charas recovered from the house rigors of Section 37 of NDPS Act are applicable in the present case. Present petition has been filed on the ground that after rejection of previous bail application, statements of six prosecution witnesses have been recorded and independent witness PW-2 Subhash Chander was declared hostile for resiling from his earlier statement recorded by the police as independent witness and examination-in-chief he has not stated anything about recovery of the contraband from the house of the petitioner. In his cross-examination by learned Public Prosecutor, there is no suggestion that charas was recovered from the petitioner or at the instance of petitioner. It has been contended that nothing was recovered from the petitioner and out of 25 witnesses, independent witnesses have been examined and the house, which was raided, is in the name of Joginder Rana and tenants also reside in the same house and adjoining land does not belong to petitioner or husband of the petitioner and there is also land dispute with the neighbour and, therefore, charas, alleged to have been recovered from the land adjacent to the house, cannot be said, with certainty, to have been hidden by the petitioner. He has further submitted that all these circumstances were not there at the time of disposal of previous bail application filed by the petitioner.

Learned counsel for the petitioner has submitted that neither Joginder Rana or other tenant have never been questioned or interrogated, much less arrayed as accused, despite the fact that house adjacent to the land wherefrom charas was recovered, is inhabited by other persons also, therefore, linking, recovery of the alleged contraband from the land, with the petitioner is only on the basis of suspicion. It has been further submitted that even if husband of the petitioner is considered to be a person involved in commission of offence under N.D.P.S Act, then also, on the basis of speculations, petitioner cannot not be termed as an accomplish for commission of such offence. It has been further submitted that that aspect was also not adjudicated in earlier bail application.

It has been also submitted on behalf of petitioner that keeping in view the provisions of Section 437 Cr.P.C for a women coupled with the fact that nothing was recovered from the petitioner and other occupants of the house have not been arrayed as an accused and there is no past criminal history and the petitioner is in detention since last more than one year. Petitioner deserves to be enlarged on bail.

It has been canvassed by learned counsel for the petitioner that information alleged to have been received by the police from the reliable source, as claimed by the prosecution, was that Arvind Rana was doing business of selling and purchasing of Charas/Chitta etc., but not the couple, i.e. petitioner and her husband, and information was not that Arvind Kumar alongwith wife or wife was in the said business. Further that being wife of Arvind Rana, petitioner had no other option but to live in his house alongwith small children and father-in-law and for any offence committed or being committed by the husband, unless there is positive evidence of involvement, wife cannot be termed as an accomplice in commission of the offence. Further that, no doubt, reverse burden under the NDPS Act is upon the petitioner to prove that she had no knowledge of presence of the contraband and that she was not in conscious possession thereof, but, at the same time, it is also a fact that house belonged to her father-in-law, where she and her husband are also residing with him alongwith their children and, therefore, her presence in the house of her in-laws was natural phenomenon and, therefore, even if it is considered that her husband was involved in commission of offence under NDPS Act, in absence of any positive evidence, petitioner could not be incarcerated by invoking provisions of Section 37 of the NDPS Act. Further that she was not the only occupant of the house, but besides the couple, old father -in-law of the petitioner was also residing with them alongwtih children.

It has been further contended that contraband was recovered from the land adjacent to the house, which is accessible to anyone, in addition to the family members, residing in the house or in the vicinity. Further that control of the petitioner on the contraband is yet to be established by the prosecution during trial.

On the basis of aforesaid circumstances, it has been contended that petitioner has been arrayed as an accused on the basis of suspicion and the so-called confession about knowledge of contraband and hiding thereof after having known about arrest of her husband. Further that as per prosecution case also, there is no disclosure by petitioner or any other person including reliable source that wife of Arvind Rana, i.e. petitioner, was also involved in business of charas. Therefore, it has been contended that 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 one surety in the like amount, 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.