Rimpy vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner, Rimpy, who is behind the bars since 13.10.2020, has approached this Court in the instant proceedings filed under S.439 CrPC, for

grant of regular bail in FIR No. 175, dated 13.10.2020, registered at Police Station Indora, District Kangra, Himachal Pradesh under S.21 of the

Narcotic Drugs & Psychotropic Substances Act.

Status report filed in terms of order dated 4.3.2021, reveals that on 13.10.2020, police personnel present at Nilwan near Jallandhar-Pathankot

Highway, saw the present bail petitioner coming from the fields. Since the bail petitioner, after having seen the police, got perplexed, police deemed it

necessary to cause her personal search. Accordingly, in the presence of independent witness, police conducted personal search of the present bail

petitioner and allegedly recovered 7.15 grams of heroin/Chitta. Since the bail petitioner was unable to render proper explanation qua possession of

aforesaid contraband, police, after completing necessary codal formalities, lodged FIR, as detailed herein above, against the bail petitioner and since

then, she is behind the bars. Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, as such,

she has approached this court in the instant proceedings, for grant of regular bail.

Record reveals that prior to filing of the petition at hand, bail petitioner had approached learned Special Judge-II, Kangra at Dharamshala, but her

petition filed under S.439 CrPC, was rejected vide order dated 8.12.2020 on the ground that one case under Act ibid is pending against her.

Mr. Kunal Thakur, learned Deputy Advocate General, while fairly acknowledging the factum with regard to filing of Challan in the competent Court

of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have

been committed by the bail petitioner, he does not deserve any leniency, as such, prayer made on her behalf for grant of bail may be rejected. Mr.

Thakur, Learned Deputy Advocate General, while making this Court peruse the status report, submits that the bail petitioner is a drug peddler and in

the past also, one case under the Act ibid as well S.304 IPC stands registered against her, as such, it may not be in the interest of justice to enlarge

her on bail, who, in the event of being enlarged on bail, may not only flee from justice but may again indulge in such activities.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that on the date of alleged incident, 7.15

gram heroin came to be recovered from the conscious possession of the bail petitioner in the presence of independent witness, as such, it cannot be

said that she has been falsely implicated in the case at hand. Similarly, status report clearly reveals that in the past also, one case under Ss. 21 and 27

of the Act ibid, and under S.304 IPC stands registered against the bail petitioner. However, guilt, if any, of the bail petitioner, in the aforesaid case, is

yet to be ascertained by the trial Court. In the previous case registered against the bail petitioner, she came to be named in the FIR No. 306, dated

9.11.2018, on the accusations made by one of accused that he had purchased Chitta from the bail petitioner. Since one of the accused in the aforesaid

case had died after having consumed Chitta, case under S.304 IPC also stands registered against the bail petitioner.

True it is, in the past, one case under the Act ibid as well as Indian Penal Code stands registered against the bail petitioner but since her guilt in that

case is yet to be established, mere pendency of that case cannot be a ground to deny bail to the petitioner in the instant case, especially when she has

already suffered for more than six months. Learned senior counsel appearing for the bail petitioner informed this Court that the present bail petitioner

is a widow and she has one son aged one and a half years. Since husband of the bail petitioner has already expired, there is none to look after minor

child, who at present is being taken care by neighbourers. Though, this court is in full agreement with Learned Deputy Advocate General that the bail

petitioner is involved in a crime having adverse impact on the society, but this court cannot lose sight of the fact that the bail petitioner has already

suffered for six months and in the event of petitioner being not enlarged on bail, there would be none to take care of her minor child, who at this tender

age requires constant care of his mother. Otherwise also, quantity of contraband allegedly recovered from the conscious possession of the bail

petitioner is intermediate in nature and as such rigours of S.37 of the Act are not attracted.

Further, S. 437 CrPC, further casts a duty upon the court to grant bail to women, if it is satisfied that it would be just and proper to do so. S.437

provides that when any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an

officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail,

but such person shall not be so released if there appear reasonable grounds for believing that he/she has been guilty of an offence punishable with

death or imprisonment for life; or if such offence is a cognizable offence and he/she had been previously convicted of an offence punishable with

death, imprisonment for life or imprisonment for seven years or more, or he/she had been previously convicted on two or more occasions of a

cognizable offence punishable with imprisonment for three years or more but not less than seven years. However, aforesaid provisions are subject to

the proviso that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen

years or is a woman or is sick or infirm.

In the instant case, bail petitioner besides being a woman, has not yet been convicted in the earlier case registered against her, as such, she is

entitled to the benefit of provisions contained under S.437 CrPC..

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. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as

such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be

recovered from him. Apprehension expressed by learned Deputy 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 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 and the bail petitioner is ordered to be

enlarged on bail, subject to furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one local 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.

(e) She shall surrender passport, if any, held by her.

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.

Copy dasti.