Nisha Rani vs State Of H.P

Virender Singh, J

Applicant Nisha Rani has filed the present application, under Section 439 of the Code of Criminal Procedure, (hereinafter referred to as ‘the Cr. P.C.) for releasing her, on bail, during the pendency of the trial, in case FIR No. 103 of 2023, dated 24.3.2023, under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the ND & PS Act), registered with Police Station, Una, District Una, H.P.

The applicant has pleaded the fact that she is innocent person and has falsely been implicated in the present case, as nothing has been recovered from her personal search.

As per the applicant, the contraband, which has been shown to be recovered from her possession, does not fall within the definition of ‘commercial quantity’, as per the NDPS Act.

As per the averments of the bail application, the applicant has also tried her luck by moving bail application, bearing No. 286 of 2023, before the learned Special Judge-I, Una, District Una, which was dismissed on 1.7.2023.

The learned counsel for the applicant has also pleaded that she is a poor lady and has a three years’ old son, who is with her in the judicial custody. It has also been pointed out that no one is there to look after her son.

Apart from this, the applicant, through her counsel Mr. Lakshay Parihar, Advocate, has given certain undertakings, for which, she is ready to abide by, in case, she is released on bail.

On these submissions, a prayer has been made to allow the bail application.

When put to notice, the police has filed the status report, disclosing therein ,that on 24.03.2023 Additional SP Kulbhushan Verma along with police party was on patrolling duty at bus stand Santoshgarh. At 5:30 am Additional S.P. received information that outside main gate of Inder Palace, a motorcycle bearing no.PB74C - 676 was parked over which Roop Lal s/o Ram Asra and a lady named Nisha (applicant) along with child was sitting. They had concealed chitta/heroine near the speedo meter of the motorcycle and were in search of some customer to sell the same. On this information, intimation under Section 42 of the Act was prepared and was sent to Supervisory Officer, i.e. Superintendent of Police. Police party, then went to spot, outside the main gate of Inder Palace and found the motorcycle bearing no.PB74C-676 parked there and a person and a lady were standing there. Additional SP Kulbhushan Verma inquired their names and they became perplexed and disclosed their names as Roop Lal s/o Ram Asra and Lady disclosed her name as Nisha w/o Pardeep (applicant). Additional S.P. Kulbhushan Verma apprised them about the suspicion that they had some contraband and they had legal right of getting searched before Gazetted Officer. They consented for search before Additional S.P. When motorcycle was searched near speedo meter, a polylthene of white colour containing light purple colour substance was recovered which, on checking with drug detection kit, was found to be heroine however, during their personal search, nothing was recovered. The recovered substance heroine was weighed and weight was found to be 63.58 gms and the substance was again put in the same polythene and sealed with seal impression ‘K’. The alleged act of Roop Lal and Nisha (applicant) comes within the purview of Section 21 and 29 of the NDPS Act. As such, the case was registered.

It is the further case of the applicant that co-accused Roop Lal is in judicial custody and the investigation in the present case is complete and Challan under Section 173(2) of the Cr. P.C. has been submitted before the learned Special Judge, Una.

In addition to this, Police has submitted the details of the case, which has been registered against the applicant, which is reproduced as under:

(i) FIR No.3 of 2022, dated 8.1.2022, Under Sections 353,186, 506, 294 read with Section 34 IPC, registered with Police Station Nangal (Punjab).

Apart from this, police has expressed the apprehensions that in case the applicant is released on bail, she may again indulge in same activities and may ruin the young generation and also coerce the witnesses.

On all these submissions, a prayer has been made to dismiss the application.

Heard.

The applicant is in judicial custody along with her minor son. The contraband, allegedly recovered by the Police in this case, does not fall within the commercial quantity. Once it has been held that the contraband, so recovered, does not fall within the commercial quantity, rigors of Section 37 of the ND & PS Act are not applicable in this case. As such, the presumption of innocence is still available to the applicant. as pre-trial punishment is prohibited under the law.

The role allegedly played by the applicant in the commission of offence will be proved during the trial and the chances of the conclusion of trial against the applicant, in the near future, are not so bright, therefore, no useful purpose would be served by keeping her in judicial custody.

So far as, the registration of other case against the applicant is concerned, this fact is also not sufficient to take away the presumption of innocence, as, admittedly, no punishment has been awarded to the applicant by the competent Court of law. Mere registration of other case, does not take away the presumption of innocence. The bail application cannot be rejected as a matter of punishment, as the punishment can only be inflicted after the trial.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is acordingly allowed.

The applicant is ordered to be released on bail in case FIR No. 103 of 2023, dated 24.3.2023 under Sections 21 and 29 of the NDPS Act, registered with Police Station, Una, District Una, on her furnishing personal bond in the sum of Rs. 50,000/-, with one surety in the like amount, to the satisfaction of learned special Judge, Una. This order, however, shall be subject to the following conditions:-

a) She shall make herself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing the appropriate application;

b) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) She shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and

d) She shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made herein above, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Bangarh, District Una, through e-mail,with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of concerned jail is directed to inform this fact to the Secretary, DLSA,Una. The Superintendent of the concerned jail is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.