Reeta vs State Of H.P

Vivek Singh Thakur, J

Petitioner has approached this Court seeking regular bail, under Section 439 of the Code of Criminal Procedure, in case FIR No. 121 of 2021, dated 13.12.2021, registered under Sections 20 and 29 of the of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) in Police Station Rajgarh, District Sirmaur, H.P.

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

Prosecution case, in brief, is that on 12.12.2021, about 6 PM police party, on patrolling, received a reliable information from a faithful informer at Narag that Vikram and Reeta (petitioner) were involved in business of selling charas and during night of 12th and 13th December, 2021, they would be coming towards Sheelabaag.

As per status report, on the basis of aforesaid information, at about 6.20 PM, necessary information, under Section 42(2) of NDPS Act, was prepared and sent to SDPO Rajgarh and a Naka was laid on Habban road. At about 12.30 AM, on 13.12.2021, a person with bag on his back along with a lady came on Habban road. On inquiry, they disclosed their identity. They were perplexed to see the police party. Being a secluded area and odd hours, independent witnesses were not available and, therefore, police personnels were associated in the search and seizure process. During search of bag, 3.044 Kg. charas was recovered from it. After complying prescribed procedure, charas was taken in possession and seized, and by sending Ruka to Police Chowki Paghhota to transmit the same through E-mail to Police Station Rajgarh, FIR was registered in Police Station Rajgarh.

During investigation, after interrogating the petitioner and co-accused, they were arrested.

As per prosecution case, Reeta Devi (petitioner) disclosed that charas was demanded by one Reetu daughter of Late Shri Het Ram resident of village Roog, Post Office Deothi, District Solan and for her repeated requests, she called her nephew Vikram and asked him to collect the charas at the rate of Rs.50,000/- per Kg. as Reetu had offered Rs.70,000/- per Kg. Further that on receiving a call of Reetu, asking to deliver the charas to her friend coming in a vehicle at Sarwah, Vikram arranged the charas from Chhotu and one other person and gave it to Reeta Devi and, thereafter, as per plan, they started for Sarwah to deliver the same but on the way intercepted by the police.

Further it has been stated in status report that on personal inquiry as well as verifying the facts from Call Details Records, no record of telephonic/mobile calls was found between Reeta Devi and Reetu. During interrogation, a person named Chhotu had disclosed that Vikram was his cousin being son of his aunt (Massi) and he used to talk with his cousin off and on and on 12.12.2021 his uncle was admitted in the hospital in Sultanpur and therefore, he had made a call on mobile to Vikram but for poor signal, they could not talk with each other and, therefore, Vikram had called him back and he had also to call back 3-4 times due to problem in signal. The houses of Reetu and Chhotu were searched but nothing suspicious material was recovered from their houses and therefore, challan was prepared against Vikram and Reeta Devi only, and presented in Court.

In challan presented in the Court, it has also been stated that on 12.12.2021 accused persons had disclosed that after collecting the charas, with common intention to sell it to some unknown person at Solan etc. to earn money, they were coming towards Shalech curve but on the way, at Chandol, they were apprehended by the police party in Naka.

As per status report, out of 21 witnesses, 9 witnesses have been examined and 2 witnesses have been given up and now 6 witnesses have been summoned for 3.11.2023.

It has been contended on behalf of petitioner that even if prosecution story is taken to be true as it is, then also there is no recovery from conscious possession of petitioner Reeta Devi and there is no material on record to link her with contraband recovered from her nephew Vikram and further that it is wrong to allege that petitioner had disclosed the name of Reetu or someone-else demanding of charas but in order to create a link between Vikram and Reeta with reference to recovered charas, a false story was concocted by police which was falsified from other material like CDRs and during raid of houses of Chhotu and Reetu, nothing incriminating material was recovered. It has been further submitted that there is no evidence or link of payment or receipt of money at the rate of Rs.50,000/- or at the rate of Rs.70,000/- between seller and accused persons as well as between proposed buyer and accused persons. It has been submitted that either there was such transaction nor was proposed. Therefore, it has been submitted that allegations as levelled in prosecution story are completely untrue and police has cooked up a story in order to frame the petitioner.

It has been contended on behalf of petitioner that it has also been claimed by prosecution that petitioner along with her nephew was apprehended during midnight, whereas she was picked up by police during day time at about 3-4 PM but in order to implicate her without having any incriminating material and without following proper procedure including without associating independent witnesses, the police has depicted her detention at 12.30 AM with further allegation that both of accused were going to Solan on foot to deliver the charas which is about a distance of 44 Km from place of alleged recovery and it is not possible for a person to travel 44 Km on foot during night. It has also been contended that at one stage, it was also claimed by prosecution that accused persons were going to deliver charas at Sarwah to a person coming in a vehicle, whereas, it is also a fact that road is available upto the place of accused persons, and there is no logic in story that accused persons were moving on road on foot instead of waiting the vehicle at one place which is unbelievable and therefore, it has been submitted that it is apparent from the status report itself that petitioner has been implicated in present case without any substantial substance and thus also, she is entitled for bail particularly taking into consideration the facts that she is lady, her period of detention and pace as well as stage of trial.

12 It has been further submitted that petitioner is behind the bars since 13.12.2021 i.e. about 1 year 8 months, whereas nothing was recovered from her and there was no financial transaction by or to her so as to connect her with charas and being a lady, particularly keeping in view the provisions of Section 437 Cr.P.C. coupled with the period of detention and time likely to be taken for completion of trial, she deserves to be enlarged on bail.

13 It has been further submitted that petitioner had approached the Trial Court by filing Bail Application No. 3-BA/22 of 2022 on 6.1.2022 which was dismissed on 14.1.2022. Further that thereafter petitioner had approached this Court by filing two bail applications bearing Cr.MP(M) Nos. 381 of 2022 and 2781 of 2022, which were not adjudicated on merits, but were dismissed as withdrawn on 25.3.2022 and 10.1.2023 respectively. It has also submitted that no bail application except the bail application decided by Trial Court has been adjudicated on its merits and in this Court, the bail is being contested on merits for the first time and further that after rejection of bail application of petitioner in January, 2022, 1 years 7 months have already passed and some witnesses have also been examined but rest witnesses have been summoned on the date fixed after a long time and thereafter remaining witnesses are yet to be summoned and therefore, there is no likelihood of conclusion of trial in near future.

Learned Additional Advocate General submits that petitioner has been found travelling during midnight hours along with her nephew from whose possession huge quantity of charas has been recovered. Therefore, it has been contended that petitioner is involved in business which is not only harming the individuals but also causing National loss causing harm to the Society at large and therefore, plea of petitioner to grant bail deserves to be rejected.

15 Learned counsel for petitioner submits that link between co-accused and petitioner for her involvement in commission of offence is yet to be proved by prosecution and further that in absence of any link or recovery from petitioner, being a lady and taking note of period of detention undergone by her, she deserves to be enlarged on bail. It is further contended that petitioner is ready to furnish personal and surety bonds to the satisfaction of Court for assuring her presence during trial in case she is enlarged on bail and she undertakes to abide by any condition to be imposed for enlarging her on bail.

16 Without commenting upon merits of case and taking into consideration the entire facts and circumstances including the facts that petitioner is a lady and nothing has been recovered from her consider possession as well as considering the period of detention and stage of trial and also taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.

17 Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail in present case, subject to his furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioner/accused at the time of trial:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(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 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 he 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 in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

18 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 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.

19 In case the petitioner violates any condition imposed upon him, his 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.

20 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.

21 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.

Petition is disposed of in aforesaid terms.

Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/Special Judge, and the said Court shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.