Rozy vs State Of H.P

Jyotsna Rewal Dua, J

Petitioner in custody w.e.f. 19.12.2020, for possessing 6.77 grams of heroin, in FIR No.198/2020, dated 19.12.2020, registered under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act for short) at Police Station Indora, District Kangra, H.P., is seeking regular bail under Section 439 of the Code of Criminal Procedure.

I have heard learned counsel for the parties and gone through the status report.

The prosecution case against the bail petitioner as it comes out from the status report is that a police party, while on patrolling duty, on 19.12.2020 at around 2.30 P.M., noticed the petitioner coming on foot from 'katcha path' alongside the fields towards the main road at place near village Dhamota in district Kangra. On seeing the police officials, petitioner became perplexed, turned back at fast pace and in that process threw a packet kept concealed in a Shawl worn by her, on the road. Getting suspicious, she was nabbed by the police officials. Search was carried out in accordance with law. Article thrown by her was retrieved and was ascertained as Heroin with the help of Drug Detection Kit carried by the police officials. The contraband measured 6.77 grams on the electronic scale. Entire procedure as contemplated under the Code of Criminal Procedure as well as the Act was followed leading to registration of the FIR in question. Petitioner was arrested on 19.12.2020 and is in custody ever since.

Learned counsel for the petitioner submitted that the quantity allegedly recovered from her was 6.77 grms of heroin, which though falls in the intermediate category but is nearer to the small quantity, notified under the Act, therefore, rigors of Section 37 of the Act will not be applicable. Learned counsel further submitted that the petitioner will abide by all the conditions, which may be imposed upon her in case of grant of bail and that she will not influence the witnesses or temper with the prosecution evidence in any manner.

Learned Additional Advocate General has submitted that the petitioner has criminal history, inasmuch as she was involved in (i) FIR No.2/17 dated 1.1.2017, under Section 21 of the NDPS Act involving 1.25 grams Heroin, (ii) FIR No.215/18 dated 13.8.2018, under Section 15 of the NDPS Act involving 2.578 Kgs of Poppy husk, (iii) FIR No. 223/19 dated 12.12.2019, under Section 21 of the NDPS Act involving 6.14 grams Heroin and (iv) FIR No. 91/20 dated 30.6.2020, under Section 21 of the NDPS Act involving 6.30 grams Heroin. Learned Additional Advocate General has, therefore, opposed the grant of bail on the ground that petitioner is a habitual offender.

It is not in dispute that the quantity allegedly recovered from the petitioner in the instant FIR is 6.77 grams of Heroin, which though falls in the commonly known as 'inter mediate category' but is nearer to '5 grams' notified as small quantity under the Act. The rigors of Section 37 of the Act are not applicable to the instant case. The petitioner is a lady and behind the bars w.e.f. 19.12.2020. By now, she has completed more than four months in imprisonment. No doubt the petitioner has previous criminal history, however, the same pertains to alleged possession of the contraband either involving small or intermediate category of contraband nearing small quantity under the Act. Status report does not mention that the State has moved any application for cancellation of the bail, if any, granted to the petitioner in the previous FIRs.

The investigation in the case is complete. Challan stands presented before the competent Court on 15.2.2021. Considering all these aspects and also the fact that the petitioner is behind the bars w.e.f. 19.12.2020 and that trial would take sufficient time, therefore, no fruitful purpose would be served in keeping the bail petitioner behind the bars any further. The petitioner, aged 32 years is stated to be a local resident of Village Dhamota, P.O. Ulehrian, Tehsil Indora, District Kangra, Himachal Pradesh, therefore, her presence can be secured in the trial. To ensure that the petitioner does not indulge in similar activities again, a strict condition is being imposed that in case she is found involved in future in any FIR under NDPS Act then this bail is liable to be cancelled. Accordingly, the present petition is allowed and petitioner is ordered to be released on bail in FIR No. 198/2020 dated 19.12.2020, registered under Sections 21 of the Act at Police Station Indora, District Kangra, H.P., on her furnishing personal bond in the sum of Rs.50,000/­, with one local surety in the like amount, to the satisfaction of the learned trial Court having jurisdiction over the concerned Police Station, subject to the following conditions:­

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. However she shall not be called in the police station before 9.00 A.M. and after 5.00 P.M;

(ii). Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.

(iii). Petitioner will not leave India without prior permission of the Court.

(iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). In case of launching of prosecutor, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E­mail, PAN Card, Bank Account Number, if any.

(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.

In case of violation of any of the terms & conditions of the bail, respondent­State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide the matter uninfluenced by any of observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

Copy dasti.