Asha Devi vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, seeking bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in FIR No.144 of 2022, dated 13.09.2022, registered in Police Station Damtal, District Kangra, H.P., under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

Status report stands filed and record was also made available.

In the status report, circumstances in which petitioner was arrested from the house of her sister-in-law (Bhabhi) Nilu Kumari, for recovery of 22.22 grams heroin/Chitta alongwith currency notes of `9,760/-, in a raid conducted on the basis of reliable information of an informer, have been narrated in detail, stating therein that at the time of raid, a lady had fled from the house, who was identified as Nilu Kumari, on the basis of information supplied by Asha Devi (petitioner) present in the house.

Admittedly house wherefrom recovery was made belongs to Nilu Kumari. Prosecution case is that petitioner alongwith Nilu Kumari had been indulging in business of supplying heroin/Chitta.

Learned counsel for the petitioner has submitted that in aforesaid facts and circumstances, it is apparent that it was not house of Asha Devi-petitioner, but of Nilu Kumari. It has further been submitted that after arrest of the petitioner, Nilu Kumari and one another lady Veena had applied for anticipatory bail in present case, by filing application before Special Judge (IV), Kangra at Dharamshala, District Kangra, H.P., and they were enlarged on bail under Section 438 Cr.P.C. by the said Court vide order dated 01.10.2022, after granting them interim bail, on 22. 09.2022.

Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which is not only ruining the individuals, but also damaging the families, society and Nation, and earlier also she was arrested in case FIR No. 135 of 2021, dated 14. 11.2021, registered in Police Station Damtal, for having in possession of 6.10 grams heroin/Chitta and, therefore, petitioner is not entitled for bail.

Learned counsel for the petitioner has submitted that quantity alleged to be recovered from the house of Nilu Kumari is intermediate quantity and it was not house of the petitioner. Further that, involvement of the petitioner in a case of NDPS Act, registered on 14.11.2021, cannot be made basis to deny bail to the petitioner when co-accused has been enlarged on bail and nothing has been recovered from the petitioner and there is no evidence on record to link the petitioner with the contraband recovered from the house of Nilu Kumari except that at the time of raid, petitioner was present in the house of her sister-in-law (Bhabhi). Whereas, there is nothing unnatural or unexpected in presence of the petitioner in the house of her Bhabhi being a close relative, and her presence cannot be considered as knowledge of contraband recovered from the house of Nilu Kumari.

It has further been submitted by learned counsel for the petitioner that petitioner is behind the bars since last about 4 months and, even if prosecution case is considered to be true, then also petitioner, during trial is entitled for bail.

Learned counsel for the petitioner has submitted that petitioner is ready to furnish bail bonds and to abide by any conditions imposed by the court, for enlarging the petitioner on bail for assuring her presence during trial.

Taking into consideration entire facts and circumstances, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this 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, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to her furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the 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/accused at the time of trial:-

(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 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 in case petitioner indulges in repetition of similar offence(s) then, her bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court her contact number and shall keep on informing about change in address and contact number, if any, in future.

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 condition 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.

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

Petition is disposed of in aforesaid terms.

Copy dasti.

Parties are permitted to produce copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify passing of order from Website of the High Court.