Sapna vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking regular bail in case FIR No. 47 of 2022 dated 20.02.2022, registered under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) in Police Station Sadar, District Bilaspur H.P.

2 Status report stands filed. Record was also made available.

As per prosecution case, on 20.2.2022 when patrolling police party was doing traffic checking near Police Station Gate at Bilaspur, at about 5.30 PM Car No. HP-73A-4004 with two occupants, was stopped for traffic checking. Rishi Kumar was driving the vehicle and petitioner was sitting on front seat on other side. The car driver could not produce any document and occupants of car were perplexed. It raised suspicion of transportation of some objectionable article/substance and therefore, Malik Khalil, sugarcane juice vendor available on spot, and Smt. Seema Chandel were associated as independent witnesses in search process and names and addresses of occupants of car were inquired and in presence of all car was checked minutely. Stepney was taken out from dickey and under the cardboard of dickey, two wrapped polythenes were found wherefrom 1.750 Kg. charas was recovered. The aforesaid charas was taken in possession and seized in accordance with law. After sending Ruka to Police Station, FIR was registered under Sections 20, 25 and 29 of NDPS Act and after registration of FIR, petitioner and Rishi Kumar were arrested. After remaining in police custody for five days, they were sent in judicial custody by learned Chief Judicial Magistrate, Bilaspur.

4 For not having driving licence and insurance of vehicle, commission of offences under Sections 181 and 196 of Motor Vehicles Act were also incorporated.

5 CDR, CAF, Tower Location of both accused was obtained and their financial transactions were also investigated. Information with respect to land and ownership of vehicle is still awaited from Tehsildar Chamba and RTO Salooni. Samples of recovered contraband have been sent to State FSL Junga.

6 Both occupants of car are resident of District Chamba and employed in private concerns at Baddi. As per prosecution story, they have disclosed that they came in contract and acquainted with each other at Baddi. Therefore petitioner visited with Rishi on excursion tour to Manikaran twice earlier also. Rishi is addict of drugs and on 19.2.2022, petitioner accompanied Rishi for excursion tour to Manikaran and on 20.2.2022 when they were coming back from Manikaran to Baddi, they had breakfast at about 11 AM in a Dhaba namely ‘Apna Hotel’ near Sandali Moad, Aut in Distrit Mandi and during that, Rishi had asked the petitioner to sit and wait for him in hotel for sometime and had gone somewhere. Thereafter, both started their journey and on reaching at Bilaspur, they were apprehended by police.

7 As per prosecution case, on inquiry at ‘Apna Hotel’ Dhaba, the owner and workers of Dhaba had expressed their ignorance about having breakfast by petitioner and Rishi Kumar in the same Dhaba.

8 It has been further submitted in status report that parentage and address of petitioner and Rishi Kumar, on verification, have been found to be correct. As per report of State FSL, recovered contraband has been confirmed to be charas. As per CDR , a lot of conversations have been found between Rishi Kumar and petitioner. On financial inquiry, no financial transaction of petitioner has been found with anyone.

9 Petitioner had filed the bail application before Special Judge, Bilaspur on 24.3.2022, which was dismissed on 25.3.2022.

10 Investigation is in progress. As per prosecution, it has been further submitted that petitioner was having knowledge about transportation of charas in the vehicle possessed and driven by Rishi Kumar.

11 Copy of order dated 25.3.2022 passed by learned Special Judge, Bilaspur rejecting the bail of petitioner has also been placed on record. Perusal thereof reveals that bail application has been dismissed by learned Special Judge, Bilaspur on the ground that recovered contraband in present case is a commercial quantity of 1 Kg 724 grams and therefore, in view of rigors of Section 37 of NDPS Act, petitioner is not entitled for bail.

12 Learned Additional Advocate General has submitted that petitioner has committed a heinous crime causing damage not only to individual’s family but also to society and Nation and therefore, she is not entitled for bail.

13 Learned counsel for petitioner has submitted that, as stated in status report, petitioner was acquainted with co-accused Rishi Kumar, but, she was not involved in transportation of charas as in her presence Rishi Kumar did not procure the charas, but he made her to sit in Apna Hotel on 20.2.2022 and during that period, he may have procured or acquired possession of contraband, but without knowledge of petitioner. According to him, petitioner belongs to Chamba and is earning her livelihood by doing work in a private Company at Baddi and Rishi Kumar also belongs to Chamba and is serving in Baddi and petitioner trusted Rishi Kumar and accompanied him, but she was not aware about procuring contraband by Rishi Kumar.

14 It has been further contended that CDR indicating the talks between petitioner and Rishi Kumar is but natural and is not relevant in present case to connect her in commission of offence as acquaintance of petitioner and co-accused Rishi Kumar with each other is an admitted fact. However, he has submitted that as has come in evidence during investigation, petitioner is not involved in present case in any way as no financial transaction has been found either in her favour or by her to anyone-else and so far as verification of ownership of vehicle from RTO Salooni is concerned, the same is related to co-accused Rishi Kumar and the said verification is not related to present petitioner.

15 It has been further submitted that petitioner is 22 years old young girl, who is at threshold of her career and for act and conduct of co-accused, she is suffering and her future perspectives not only with respect to her job, but also with respect to her marriage shall be affected at this stage, in case she is not enlarged on bail.

16 Lastly it has been submitted that keeping in view the provisions of Section 437 Cr.P.C. for a woman coupled with facts surfaced on record that she was accompanying Rishi Kumar for excursion tour and was not aware about transportation of contraband, she deserves to be enlarged on bail. Further that as petitioner was not having any knowledge of contraband, therefore, quantity of recovered contraband is also irrelevant for adjudication of bail application of petitioner as charas has not been found from her conscious possession and she was not having control over activities and movement of co-accused, and therefore, rigors of Section 37 of NDPS are also not applicable to her. It has been further submitted that there is no previous criminal history of petitioner about her involvement in commission of any offence much less offence under NDPS Act.

17 Taking into consideration the entire facts and circumstances, but, without commenting on merits thereon and 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.

18 Accordingly, petitioner is ordered to be enlarged on bail, at this stage, subject to furnishing personal bond in the sum of Rs. 1 lac with one surety in the like amount to the satisfaction of trial Court within a period of two weeks from today and also subject to any further conditions to be imposed by trial Court for assuring her presence during trial including the following further conditions:-

(i) That the petitioner shall make herself available during the investigation as well as trial on each and every date as and when required;

(iii) 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 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;

(iv) That the petitioner shall not obstruct the smooth progress of the investigation as well as trial;

(v) That the petitioner shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

(vi) That the petitioner shall not commit the offence similar to the offence to which she is accused or suspected or the commission of which she is suspected;

(vii) In the event of repetition of commission of offence, bail granted in present case shall be liable to be cancelled on taking appropriate steps by prosecution/police;

(viii) That the petitioner shall not leave India without prior permission of Court;

(ix) That petitioner shall not misuse her liberty in any manner.

19 It will be open to the prosecution to apply for imposing any such other or further condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It will also be open to the trial Court/Magistrate to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

20 In case the petitioner violates any condition 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.

21 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 18.3.2013.

22 Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, they may verify the order from the High Court website or otherwise.

Petition stands disposed of.

Dasti copy on usual terms.