Reena Kumari vs State Of H.P

Sandeep Sharma, J

Bail petitioner-Reena Kumari who is behind the bars since 18.11.2021, has approached this court in the instant proceedings, for grant of regular bail in FIR No. 184, dated 18.11.2021, registered at Police Station Indora, District Kangra, Himachal Pradesh under S.21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Pursuant to order dated 15.9.2022, respondent-State has filed status report, perusal whereof reveals that on 18.11.2021, police after having received secret information that the bail petitioner indulges in illegal trade of narcotics, raided her house and allegedly recovered 34.38 gram Chitta/heroin from her house. Since no plausible explanation came to be rendered on record by the bail petitioner qua possession of aforesaid quantity of contraband, police lodged the FIR, as detailed herein above and arrested the bail petitioner. Since investigation is complete and nothing remains to be recovered from bail petitioner, she has approached this court in the instant proceedings, for grant of regular bail.

While fairly admitting the factum with regard to filing of Challan in the competent court of law, Mr. Sudhir Bhatnagar, learned Additional Advocate General submits that though nothing remains to be recovered from bail petitioner but keeping in view gravity of offence alleged to have been committed by the bail petitioner, she does not deserve leniency and her prayer for bail deserves outright rejection. While making this court peruse record of investigation, learned Additional Advocate General submits that in the past two cases stand registered against the bail petitioner under the Act ibid and entire family of the bail petitioner is involved in illegal trade of narcotics, which fact is substantiated from the fact that her husband is behind bars in a case registered under the Act ibid. He states that in the event of the bail petitioner being enlarged on bail, she may again indulge in such activities and as such, prayer for grant of bail made on behalf of the bail petitioner, may be rejected.

Having heard learned counsel for the parties and perused material available on record this court finds that the alleged recovery of contraband was effected in the presence of independent witnesses and as such, there appears to be no force in the submission of learned counsel for the petitioner that the bail petitioner has been falsely implicated. True it is that as per status report, two cases under the Act ibid stand registered against the bail petitioner but since in the case at hand, recovery of contraband came to be effected from house of the bail petitioner, where she does not reside alone rather with her husband, it may be too premature at this stage, to conclude the complicity of bail petitioner in the alleged offence, especially taking note of the credentials of her husband, who is already behind bars on account of his having indulged in illegal trade of narcotics.

Since an intermediate quantity has been allegedly recovered from the house of the bail petitioner, rigours of S. 37 of the Act are not attracted. Otherwise also, it is not understood that why the Investigating Agency, till date, has not moved an application for cancellation of bail granted to the bail petitioner in other cases on account of lodging of present FIR, as such, respondent State cannot be permitted at this stage to oppose the bail in favour of the bail petitioner on the ground that two cases stand registered against her. Leaving everything aside, this court finds that the bail petitioner is behind bars for ten months and charge is yet to be framed in the case, meaning thereby considerable time is likely to be consumed in the conclusion of the trial.

Needless to say that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under Art. 21 of Constitution of India. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).”

No doubt, it has come in the status report filed by investigating agency that there are cases pending against the bail petitioner, but that can not be a ground to deny bail to the bail petitioner. Hon'ble Apex Court in Maulana Mohammed Amir Rashadi v. State of U.P. (2012) 2 SCC 382 has held that merely on the basis of criminal antecedents, the claim of the bail petitioner cannot be rejected. Hon'ble Apex Court has observed as under:

“10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.”

Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law, as such, there appears to be no reason for this court to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when she has already suffered for more than ten months. It has been fairly admitted by Investigating Officer present in court that there is none to take care of the children of the bail petitioner because their father is already behind bars, as such, there appears to be no justification to keep the bail petitioner behind the bars during trial. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.

Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of the learned trial Court, besides 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 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 him/her 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.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon her, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.

A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.