Nirmala vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner, invoking Section 439 of the Code of Criminal Procedure, has approached this Court for grant of bail in case FIR No.88/2020, dated 18.3.2020, registered under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) in Police Station Sadar, District Mandi, Himachal Pradesh.

Status report stands filed. Record has also been made available.

In the Status Report, the circumstances in which 1.070 kg Charas was recovered from a bag possessed by the petitioner during checking of the Bus in which petitioner and co-accused Chander Kumar were travelling, have been narrated. After search and seizure of the contraband, in accordance with law, FIR was registered by sending a Ruka to the Police Station and, thereafter, petitioner alongwith co-accused was arrested on 18.3.2020.

Recovered contraband was sent to the State Forensic Science Laboratory (SFSL) where the recovered contraband has been found to be 1.048 kg and confirmed to be Charas.

Learned counsel for petitioner has submitted that as per prosecution, at the time of recovery, weight of recovered contraband was 1.070 Kg., which, on receiving in the State Forensic Science Laboratory has been confirmed as 1.046 kgs. which is slightly more than 1 Kg and it is borderline case with respect to minimum prescribed quantity of commercial quantity and he has submitted that there may be error in weighing the contraband as recovered contraband is only 46 grams higher than 1 Kg and, therefore, case of petitioner deserves to be considered without applying rigors of Section 37 of NDPS Act.

Learned Additional Advocate General has submitted that weight mentioned in recovery memo as well as other documents, is correct weight which is more than 1 Kg and, therefore, 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 individual, his family as well as society, is not entitled for bail, more particularly for the reason that he has been found involved commission of offence under NDPS Act earlier also regarding which FIR No.12 of 2020, dated 10.1.2020 has been registered in Police Station Sundernagar for recovery of 40 grams Chitta from the petitioner.

Learned counsel for the petitioner has submitted that being a female, petitioner may be treated differently than co-accused Chander Kumar and may be enlarged on bail, and keeping in view the fact that recovered quantity of contraband is about 1 kg and that the petitioner is behind the bars since March 2020. He has further submitted that previous criminal history of the petitioner may not be relevant because in present case recovered contraband is about 1 kg and, therefore, rigors of Section 437 Cr.P.C. are not warranted to be pressed into.

Without commenting upon merits of rival contentions of the parties, considering the material placed before me and also parameters and factors necessary to be considered at the time of adjudication of bail application, I am of the opinion that, at this stage, petitioner may be enlarged on bail.

Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail, at this stage, 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, and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the 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, as per 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.

He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

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

(viii) he 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. It shall be open for the trial Court to impose any other condition, as deemed necessary, upon the petitioner, independent of prayer of prosecution.

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 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.

The petitioner is 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, passing of order may be verified from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.