Krishna vs State Of Himachal Pradesh

Chander Bhusan Barowalia, J

The present bail application has been maintained by the petitioner, under Section 439 of the Code of Criminal Procedure seeking her release in case

FIR No. 0029/2019, dated 06.02.2019, under Section 21 of Narcotic Drugs and Psychotropic Substances Act (for short “ND & PS Actâ€) and

Section 201 of Indian Penal Code (for short “IPCâ€​), registered in Police Station Sadar-Shimla, H.P.

As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. Further, she is resident of

the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by

keeping her behind the bars for an unlimited period, so she be released on bail.

Police report stands filed. The prosecution story, as emanates from the records, is that on 05.02.2019, around 6:45 p.m., a police party was on

routine patrol duty at Bus Stand Shimla, where they got a secret tip-off that Seema, resident of Mahashiv Colony Fagli Road Down Dale Shimla, is

involved in the business of illicit drugs and she has kept the same in her house. In case a raid is conducted, huge amount of drugs can be recovered. It

was also informed that Seema’s daughter Pooja and her son-in-law, Dharma, are also involved, who reside with Seema in the same house. As the

Court was far away from the place where the raid was to be conducted, the police party did not procure the search warrant, as there was possibility

of drugs’ being relocated, so, information under Section 42(2) of ND & PS Act was prepared and sent to the quarter concerned. Police

associated an independent witness, Shri Inderjeet Singh, who was present at Bus Stand. Thereafter, the house of the accused was surrounded and

when Dy. SP, Sh. Pramod Shukla, Tehsildar (Urban), Sh. Sanjeev Gupta; and Incharge Police station reached the spot, the raiding team entered the

house of the accused, where Seema alongwith Pooja and Dharma was present. Thereafter, search of the house, in presence of independent witness,

was carried out and from an electric extension board five polythene packets enwrapped in a cloth were recovered. When these five packets were

opened and checked by using Narcotic Drug Deduction Kit, the same were found to be heroin. On weighment, the contraband was found to be 378

gms. Thereafter, an almirah was opened, where a bag was lying and on being checked it contained currency notes of denominations; i.e.

500x51=25,500/-, 200x25=5000/-, 100x23=2300/- , 20x5=100/-, 50x2=100/-, 10x35=350/-, total 33,350/- . Thereafter, all codal formalities were

completed and investigation was ensued. The accused persons were arrested. During the course of investigation, the accused persons divulged that

the seized contraband belongs to Krishana (petitioner herein). During further investigation, the petitioner divulged that SIM Card Number 70183-

90894, which she was using, was destroyed by her, as after the arrest of Seema she was apprehending her arrest too. Consequently, on 06.07.2019,

the petitioner was arrested in case FIR No. 0029/2019, dated 06.02.2019, under Section 21 of ND & PS Act and Section 201 of IPC. Lastly, it is

prayed that the bail application of the petitioner be dismissed, as the petitioner is involved in a serious offence, and there is every possibility that in case

at this stage she is enlarged on bail, she may flee from justice and tamper with the prosecution witnesses.

I have heard the learned counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the

police report, carefully.

The learned counsel for the petitioner has argued that the petitioner has been implicated in the present case only on the basis of disclosure

statements of the accused persons and that she has made a telephonic call to her sister regarding making arrangement for providing her legal

assistance. He has further argued that the petitioner was not arrested on the spot. No recovery was made from the petitioner. There is no material

evidence as to the involvement of the petitioner in the crime except the disclosure statement, which is not of any evidentiary value. He has argued that

circumstances of the case show that the petitioner is not at all involved in the present offence and she is arrested as there are other case(s) pending

against her, which are under different Sections of the Penal Code and only one case is there under the ND & PS Act, in which also she is on bail. He

has argued that the petitioner was arrested after five months of recovery and this is also a reason that no case is made out against her and she is

required to be released on bail.

On the other hand, learned Additional Advocate General has argued that the petitioner is found involved in the illicit business of drugs and

destroying the future of the youth, as such, she has committed a serious crime and in case, she is enlarged on bail, she may tamper with the

prosecution evidence and may also flee from justice, so it is prayed that the bail application of the petitioner may be dismissed.

In rebuttal, the learned counsel for the petitioner has argued that the petitioner is a lady and is behind the bars approximately for the last two years

and moreover she is arrested only upon the statement made by the accused persons, who were booked for possessing heroin, i.e., 378 grams, so

considering the overall facts and circumstances of the case, the present petition is required to be allowed and the petitioner may be enlarged on bail.

Heard. The present is a case where heroin, i.e., 378 grams, was allegedly recovered from the accused persons, other than the petitioner herein. It

has come on record that the petitioner was arrested when the co-accused stated that they procured the contraband from her, thus evidently no

recovery of contraband was affected from the petitioner. Further, it has nowhere come in the investigation that the petitioner is a supplier of drugs or

in any way connected with the offence. Rigors of the ND & PS Act are certainly harsh upon the person booked under it, so the Courts are duty

bound to analyze each and every facet of the case with utmost care, but, in the instant case, as the recovery of the contraband was not effected from

the possession of the petitioner and she was arrested firstly upon the statements of the co-accused persons and secondly after five months of lodging

of the FIR, so this very aspect of the case cannot at all be given go-by and this Court has to be insightful of this facet of the case.

At this stage, this Court has also considered the fact that some more cases, under the Penal Code are pending against the petitioner, however, it is

the fundamental principal of criminal jurisprudence that one criminal proceeding does not have any bearing, whatsoever, upon the other and one

criminal case cannot be seen with the spectacles of other criminal case. This Court, considering the facts that the recovery has not been effected

from the conscious and exclusive possession of the petitioner and she was booked upon the statement of the co-accused persons, the petitioner is a

lady, who is resident of the place, so neither in a position to flee from justice nor in a position to tamper with the prosecution evidence. Moreover, the

petitioner, who is behind the bars for the last approximately two years, cannot be kept behind the bars for an unlimited period, so in present facts and

circumstances of the case and without discussing the same elaborately at this stage, the present is a fit case where the judicial discretion to admit the

petitioner on bail is required to be exercised in her favour. Under these circumstances, it is ordered that the petitioner be released on bail, in case FIR

No. 0029/2019, dated 06.02.2019, under Section 21 of ND & PS Act and Section 201 of IPC, on her furnishing personal bond to the tune of

Rs.1,00,000/- (rupees one lac only) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the

following conditions:

i. That the petitioner will join investigation of case as and when called for by the Investigating Officer in accordance with law and will appear before

the Court.

ii. That the petitioner will not leave India without prior permission of the Court.

iii. That the petitioner will 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 the Investigating Officer or Court.

Before parting, it is made clear that considering the peculiar facts and circumstances of the case, the instant petition is being allowed, however, the

observations, made hereinabove are only confined to the adjudication of the present petition and the same shall have no bearing on the merits of the

case in any manner, whatsoever.

In view of the above, the petition is disposed of.

Copy dasti.