Rajni Devi vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court seeking bail in case FIR No. 138 of 2021, dated 23.10.2021, registered in Police Station Palampur District Kangra, H.P. under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short “NDPS”).

Status Report stands filed. Record was also made available.

As per prosecution case on 23.10.2021, Police Party of Narcotics & Mining Prevention & Detection Cell Kangra at Dharamshala was checking the vehicle near Nugalpul towards Menja. At about 12.15 P.M. a car bearing H.P.66-8418 came from Manja Pul side, wherein apart from driver one lady was also sitting on front seat. When ASI Virender Singh started questioning the driver, the driver was perplexed raising suspicion of some illegal activity whereupon, after joining independent witness Sanjeev Kumar and accompanying Police Officials, car was searched. During search a carry bag containing solid substance, was found kept in the feet of driver. On opening and checking the bag, black colored substance was recovered from it, on the basis of smell and experience and as also stated by occupants of Car, was found to be charas. On weighing, it was found 1.204 Kilograms. Completing prescribed formalities, charas was seized and after sending rukka, FIR was registered in Police Station, Palampur and thereafter occupants of Car, i.e. Birbal, driver and Rajni (petitioner) were arrested and Car was also impounded. As per status report, during investigation, both accused were interrogated intensively and after obtaining Call Details Record, it was also studied minutely, but neither source of charas could be asserted nor any suspicious number was found in the Call Details Record. On verification of financial activities, including moveable and immovable property of the accused, no fruitful information could be gathered nor any corresponding or any other suspicious transaction was found in their accounts during last one year.

State FSL has confirmed the recovered contraband as charas. It is also case of the prosecution that during detailed interrogation, it was disclosed by both the accused that they had collected charas during last 10- 15 days by extracting it from cannabis plants grown naturally in forests and rivers nalahs and they were in search of customers in Palampur area.

Owner of the Car is Suman Lata, who is sister of petitioner Rajni Devi. As per prosecution case, on 6.12.2021 she was inquired and interrogated, who stated that on 23.10.2021 her younger sister Rajni Devi (petitioner) had asked for her Car to go Palampur for check of her eyes in Eye Hospital, Maranda Palampur, as she was facing acute pain in the eyes and suffering from visual problem and having faith and for family relation, she had permitted to take her Car, but she was not knowing that Rajni Devi (petitioner) would be involving in commission of some illegal activity along with her friend. It has been concluded in the status report that owner of the Car Suman Lata was not involved in commission of offence.

It has also been stated in the status report that Birbal could not produce his driving license and he has also been found involved in two other cases bearing FIR No. 101 of 2013, dated 10.10.2013, Registered under Sections 363, 366, 376 IPC, Section 4 of POSCO Act, in which case he was convicted and case FIR No. 380 of 2009, dated 6.10.2009, registered under Sections 279, 337, 338 IPC and 180 of M.V. Act, which is pending adjudication in the Court.

Learned counsel for the petitioner has submitted that petitioner is behind the bars since October, 2021 and as stated in the status report, it was driver of the vehicle, i.e. Birbal, who became perplexed when Police was inquiring him and contraband was also recovered from the driver, which was kept by him alongwith his feet under the driver seat. Whereas, petitioner was taking help of Birbal to drive the Car to visit to Eye Hospital Maranda Palampur for checkup and treatment of her eyes and she was not aware about transportation of contraband by the driver. It has been further stated that it is case of the prosecution that Call Details Record as well as financial verification did not suggest involvement of the petitioner in commission of offence. It has been further submitted that in order to frame the petitioner, prosecution has concocted a story of extraction of charas by the petitioner alongwith Birbal, whereas either through Call Detail Record or otherwise, no link or relation of co-accused Birbal with the petitioner Rajni has surfaced, except that he was driving the Car of sister of petitioner.

It has further been submitted that keeping in view provisions related to female in Section 437 Cr.P.C. and also keeping in view the substance of status report indicating non-involvement of the petitioner in commission of offence, petitioner is entitled for bail.

Learned counsel for the petitioner has submitted that there is no previous criminal history of the petitioner and, therefore, for aforesaid reasons she may be treated differently from co- accused Birbal from whose actual possession contraband has been recovered.

Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which not only ruin the individuals, but also damaging the families, society and Nation and recovered contraband is of commercial quantity and, therefore, petitioner is not entitled for bail.

Without commenting upon merits of rival contention of parties, but taking into consideration material placed before me in the status report and also submission of learned counsel for the petitioner alongwith factors and parameters required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner can be treated differently for the purpose of bail then co-accused Birbal and, therefore, she may be enlarged on bail.

Accordingly, petitioner is ordered to be enlarged on bail on furnishing personal bond in the sum of 1,00,000/- with one surety in the like amount, to the satisfaction of trial Court, within two weeks from today 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 presence of the petitioner at the time of trial:-

(i) That the petitioner shall join the investigation and attend the Court as and when directed to do so by the Investigating Agency/Court;

(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. 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 his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

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

(viii) she 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, enlarged on bail, 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 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 trial Court shall not insist for certified copy of the order, however, he may verify the order from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.