Asha Devi vs State of H.P

Anoop Chitkara, J

A lady aged 39 years, in custody since 6.05.2020 for possessing commercial quantity of Poppy Husk, has come up before this Court under Section

439 of Cr.P.C., seeking bail.

Earlier, the petitioner had filed the following bail petitions:

(a) Bail application No.401-D/XXII/2020 filed by the petitioner was dismissed by learned Special Judge-II, Kangra, at Dharamshala, on 31.12.2020.

(b) Cr.MP(M) No.247 of 2021, filed by the petitioner before this Court was dismissed vide order dated 26.03.2021.

Although the petition is silent about criminal history of the petitioner, but Mr. N. S. Chandel, learned Senior Advocate, states that the petitioner has

no criminal history. She is not involved in any other case. He further states that the status report also does not mention about the criminal history of the

petitioner. However, Mr. Nand Lal Thakur, learned Additional Advocate General, states on instructions that there is no criminal history against the

petitioner.

Briefly, the allegations against the petitioner are that on 10.02.2020, Police Station, Damtal, received Rukka from ASI Kuldeep Chand, informing

about recovery of contraband. Based on the said information, police registered the above FIR to the following effect:-

(i) That on 10.02.2020, ASI Kuldeep Chand and other police officials were patrolling in their official vehicle to control law and order and to detect

crime. When police officials reached at a place known as Mohtli Ramp, then at around 2:30 p.m., investigator received a secret information that Smt.

Asha Devi (A-1) is indulged in sale of poppy husk from her house. The investigator recorded such information under Section 42 of NDPS Act and

forwarded the copy of the same to SDPO.

(ii) After that, the investigator arranged for independent witnesses and proceeded towards the house of Asha Devi. Alongwith independent witnesses,

namely, Sagar Singh and Suresh Kumar, police officials reached at the house of Asha Devi.

(iii) In the house of Asha Devi, she was not present, however, her two sons aged 14 and 12 years were in the house. They told the police that their

mother, Asha Devi, was in the house till some time ago. They further told the investigator that their father is in jail for the last one year. After waiting

for an hour, investigator proceeded to conduct the search of the house in the presence of independent witnesses. When police officials checked the

store of the house, then they recovered fourteen sacks and one bag. On opening the bag, police recovered one country made pistol (katta) and ten live

cartridges. Thereafter, on opening the sacks, police recovered poppy husk, which on weighing, found to be 350.7 Kg (3.5 quintal)

(iv) After that the police sealed all the bags in the same condition and after affixing the seals made a seizure memo. The investigator also did sealing

of pistol in the similar manner.

(v) On 06.05.2020, the investigator was able to arrest the accused Asha Devi, that is, after about four months of the recovery.

(vi) During interrogation of Asha Devi, police came to know about the involvement of her brother-in-law, Rajinder Kumar (A-2). The investigator

collected call details and found involvement of her brother-in-law, Rajinder Kumar (A-2). After that, police arrested Rajinder Kumar (A-2) on

10.05.2020.

(vii) Further interrogation of the accused revealed the involvement of Parvesh Kumar (A-3), petitioner herein, and Rajat Kumar (A-4). Subsequently,

the investigator arrested both Parvesh Kumar and Rajat Kumar.

(viii) During interrogation, both Parvesh Kumar and Rajat Kumar, who are related to each other, disclosed that they had purchased poppy husk and

country made pistol from a truck driver. The said truck driver belongs to Jammu and was going towards Damtal. After that they had brought the

poppy husk to the house of Asha Devi (A-1) and had offered her money to keep the same in her house.

(ix) The Ballistic expert found the country made pistol to have been used and in working condition. Similarly, FSL detected the recovered contraband

as poppy straw. Based on this investigation, police file report under Section 173 of Cr.P.C.

Ld. counsel for the bail petitioner submits that the co- accused have been granted bail by this Court. He further argued that, in fact, contraband

belongs to Rajinder Kumar, brother-in-law of the petitioner. He further states that Rajinder Kumar deals in narcotics and is a drug mafia.

Arguments on behalf of the State are that the Police have collected sufficient evidence by tracing frequent calls made by the bail petitioner, the

main accused, and the seller of contraband, which prima facie points out towards his involvement. He also contended that the accused has yet not

discharged the presumption under S. 35 of NDPS Act, and further that the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act

do not entitle the accused for bail. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail,

such a bond must be subject to very stringent conditions.

Admittedly, at the time of recovery, the victim was not at home and for this reason alone she was not arrested for four months.

The decision of this Court in Satinder Kumar v. State of H.P., Cr.MP(M) No. 391 of 2020, decided on 4th Aug 2020, covers the proposition of law

involved in this case, wherein this Court has held that Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The ratio of the

decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS Act.

A perusal of the entire record reveals that it is Rajinder Kumar, who is the main accused and kind pin, prima facie, involved in this case. Since,

Rajinder Kumar is brother-in-law of the petitioner, as such, she was also involved in the present case. A perusal of the status report and the petition

reveal that Rajinder Kumar had a number of case pending against him, which are as under:-

(i) FIR No. 198 of 2014, registered under Section 21 of NDPS Act in Police Station, Indora, District Kangra, H.P.

(ii) FIR No. 133 of 2016, registered under Section 21 of NDPS Act in Police Station, Indora, District Kangra, H.P.

(iii) FIR No. 193 of 2016, registered under Section 29 of NDPS Act in Police Station, Indora, District Kangra, H.P.

(iv) FIR No. 31 of 2017, registered under Section 21 of NDPS Act in Police Station, Indora, District Kangra, H.P.

(v) FIR No. 153 of 2017, registered under Sections 15 and 21 of NDPS Act in Police Station, Indora, District Kangra, H.P.

Since, Rajinder Kumar must have acquired the knowledge and skills from jail and previous experiences that how to save himself and implicate

others, as such, possibility of keeping the poppy husk in the house of the petitioner without her knowledge cannot be ruled out. This possibility assumes

significance because the petitioner has no criminal history. In the absence of criminal history, it cannot be assumed that her brother-in-law, who has

criminal history, would not have deceived her.

The contention that confessional statement of the co-accused is hit by S. 25 & 26 of Indian Evidence Act, is well founded. Ld. Additional

Advocate General has failed to point out towards any incriminating evidence against the accused except the allegations of co-accused.

S. 37 of the NDPS Act implies that the accused should satisfy its twin conditions and come out clean. The confessional statement of one of the

accused is legally insufficient to deny bail to the other accused, in the absence of any other incriminating evidence or allegations. Thus, the petitioner

has satisfied the first condition. To take care of the second condition, the petitioner pleaded in Para 3(ix) of bail that she has no criminal history. The

State also does not dispute it. To take care of the second condition, stringent conditions would suffice.

In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail. Any detailed discussions about the

evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons mentioned above, and keeping in view the

nature of allegations, petitioner has made out a case for grant of bail.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can

be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

Given the above reasoning, coupled with the peculiar facts and circumstances of the case, the Court is granting bail to the petitioner, subject to

strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that

any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to

switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to her furnishing a personal bond of Rs. Twenty-five thousand (INR

25,000/-), and shall furnish one surety of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station

conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate 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.

In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made

in favour of ""Chief Judicial Magistrate, District Kangra at Dharamshala, H.P.,

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g.,

Bank of America, Chase, HSBC, City Bank, HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal,

and liberty of the interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled.

e) The petitioner or her Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such

information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as

well as FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be

endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC,

1973, or until discharged by substitution as the case may be.

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay

the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall deposit his passport, if not already seized by the Police.

(d) The petitioner shall, within thirty days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the

SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the “ON†mode. Before replacing his mobile

phone, she shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating

officer asks him to share his location, then she shall immediately do so. The petitioner shall neither clear the location history nor format her phone

without permission of the concerned SHO/I.O. She shall also not clear the WhatsApp chats and calls without producing the phone before the

concerned SHO/I.O.

e) During the pendency of the trial, if the petitioner commits any offence under NDPS Act, even if it involves small quantity, then it shall be open for

the State to apply for cancellation of this bail order.

f) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police

officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

g) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the

investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall

not be subjected to third-degree, indecent language, inhuman treatment, etc.

f) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to

achieve the purpose.

During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates

any condition as stipulated in this order, the State may move an appropriate application before this Court, seeking cancellation of this bail. Otherwise,

the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.

Any advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking

cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with

the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the

authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

Copy Dasti.