Veena Devi @ Binakshi @ Pooja vs State of Himachal Pradesh

Jyotsna Rewal Dua, J

The petitioner seeks regular bail in FIR No.52/2020, dated 15.02.2020, registered under Section 20 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short ‘NDPS Act’) at Police Station Bhuntar, District Kullu.

The prosecution case in nutshell is that the police officials present near Bhains Nallah, District Kullu on 15.02.2020, stopped a Volvo Bus bearing

registration No.DL-1-PC-5087 for routine checking. This bus was coming from Bhuntar side and heading towards Mandi. The Driver and Conductor

of the bus were associated as independent witnesses during the search. While the police officials were checking the luggage of passengers, two ladies

sitting on seat Nos.37 and 38 appeared scared and perplexed, raising suspicion in the eyes of police officials. A maroon coloured trolley bag was found

lying between the feet of both these ladies. On questioning, these ladies disclosed themselves to be real sisters and gave their details as Vidya Devi

(Seat No.38) and Veena @ Pooja-the bail petitioner (Seat No.37). Search of the bag was carried out in accordance with law. Underneath the clothes

kept in the bag, three parcels were found containing black coloured substance, which was eventually ascertained as cannabis and weighed 1.807 kg.

This led to registration of the FIR in question. The petitioner, alongwith Vidya Devi, was arrested on 16.02.2020 and ever since then is behind the

bars.

A previous bail petition filed by the petitioner, bearing Cr.MP(M) No.1357 of 2020, was dismissed by this Court on 24.08.2020 alongwith Cr.MP(M)

No.1358 of 2020 filed by co-accused Vidya Devi. Be it noticed here that the only ground urged for enlargement on bail in those common petitions was

that the quantity of 1.807 kg of cannabis allegedly recovered in the FIR from two accused persons has to be reflected as recovered half against each

of the accused persons. This ground was dispelled in the judgment dated 24.08.2020, dismissing the bail petitions. Another bail petition filed by the

petitioner was dismissed by the learned Special Judge-II, Kullu on 08.03.2021 on the ground that petitioner was unable to satisfy rigors of Section 37

of the NDPS Act.

Learned counsel for the petitioner contended that the petitioner is innocent and has been falsely implicated in the FIR. During the course of

arguments, learned counsel referred to various documents to bring home the pleaded point that there was no involvement of the petitioner in the entire

episode alleged by the prosecution. To avoid repetition, these documents have been referred to in the next para. Whereas, learned Deputy Advocate

General, while opposing the bail plea, argued that present is a case of recovery of commercial quantity of contraband and the petitioner has failed to

satisfy the conditions prescribed under Section 37 of the NDPS Act. 5. The petitioner was arrested on 16.02.2020 alongwith co-accused Vidya Devi

for their alleged joint possession of 1.807 kg of cannabis. The quantity of contraband recovered is commercial, therefore, the FIR attracts provisions of

following Section 37 of the NDPS Act:-

“37. Offences to be cognizable and non-bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 of section 24 or section 27A and also for offences involving commercial

quantity shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of

such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure,

1973 (2 of 1974) or any other law for the time being in force, on granting of bail.â€​

In order to avail bail, the petitioner has to satisfy following twin conditions imposed in Section 37 of the NDPS Act:-

(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and

(ii) Petitioner is not likely to commit any offence while on bail.

Hon’ble Apex Court in (2020) 12 SCC 122, titled State of Kerala and others Versus Rajesh and others, after considering various pronouncements

held that the expression ‘reasonable grounds’ used in Section 37 of the NDPS Act means something more than prima-facie grounds. It

contemplates substantial probable causes for believing that the accused is not guilty of alleged offence. It would be appropriate to extract relevant

paras from the judgment:-

“19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of

the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section

is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions

are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must

be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the

ban for granting bail operates.

The expression “reasonable grounds†means something more than prima facie grounds. It contemplates substantial probable causes for

believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and

circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High

Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other

law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.â€​

It will also be appropriate to refer to (2020) 13 SCC 447, titled Sujit Tiwari Versus State of Gujarat and another, wherein following was observed in

relation to satisfaction of requirement under Section 37 of the NDPS Act vis-Ã -vis facts of that case:-

“10. The prosecution story is that the appellant was aware of what his brother was doing and was actively helping his brother. At this

stage, we would not like to comment on the merits of the allegations levelled against the present appellant. But other than the few WhatsApp

messages and his own statement which he has resiled from, there is very little other evidence. At this stage it appears that the appellant may

not have even been aware of the entire conspiracy because even the prosecution story is that the brother himself did not know what was

loaded on the ship till he was informed by the owner of the vessel. Even when the heroin was loaded in the ship it was supposed to go

towards Egypt and that would not have been a crime under the NDPS Act. It seems that Suprit Tiwari and other 7 crew members then

decided to make much more money by bringing the ship to India with the intention of disposing of the drugs in India. During this period the

Master Suprit Tiwari took the help of Vishal Kumar Yadav and Irfan Sheikh who had to deliver the consignment to Suleman who had to

arrange the money after delivery. The main allegation made against the appellant is that he sent the list of the crew members after deleting

the names of 4 Iranians and Esthekhar Alam to Vishal Kumar Yadav and Irfan Sheikh through WhatsApp with a view to make their

disembarkation process easier. Even if we take the prosecution case at the highest, the appellant was aware that his brother was indulging

in some illegal activity because obviously such huge amount of money could not be made otherwise. However, at this stage it cannot be said

with certainty whether he was aware that drugs were being smuggled on the ship or not, though the allegation is that he made such a

statement to the NCB under Section 67 of the NDPS Act.

At this stage, without going into the merits, we feel that the case of the appellant herein is totally different from the other accused.

Reasonable possibility is there that he may be acquitted. He has been behind bars since his arrest on 4-8-2017 i.e. for more than 2 years

and he is a young man aged about 25 years. He is a B.Tech Graduate. Therefore, under facts and circumstances of this case we feel that

this is a fit case where the appellant is entitled to bail because there is a possibility that he was unaware of the illegal activities of his

brother and the other crew members. The case of the appellant is different from that of all the other accused, whether it be the Master of the

ship, the crew members or the persons who introduced the Master to the prospective buyers and the prospective buyers.

We, however, feel that some stringent conditions will have to be imposed upon the appellant.â€​

With the assistance of learned counsel for the parties, I have gone through the police report filed under Section 173(2) of the Code of Criminal

Procedure appended alongwith the bail petition. I have also perused the status report and other material placed on record. The following aspects

highlighted by learned counsel for the petitioner need noticing for adjudication of this bail petition:-

(i). In the booking chart for passengers of the bus in question (part of challan), name of the petitioner and that of the other co-accused are written in

Hindi language and they figure at the bottom of the list. Whereas, names of rest of the passengers are written in English language. Some overwriting

in chart towards the end is visible. The seat numbers also do not appear to have been mentioned in continuity.

(ii). The trolley bag, from which the contraband was allegedly recovered by the police, has not been taken into possession by the investigating agency.

It has not been made part of the case property.

(iii). It is the case of the prosecution that during investigations, co-accused Vidya Devi had disclosed that the contraband in question was handed over

by her son-in- law- Hira Singh, for being delivered to him in New Delhi. For carrying the contraband, both the accused persons were statedly

promised Rs.15,000/- each by said Hira Singh. Age of Vidya Devi is mentioned in the challan at one place as 32 years and at another place as 36

years.

(iv). As per police report, Hira Singh- the son-in-law of co-accused Vidya Devi has neither been made an accused nor a witness in the case.

(v). The co-accused Vidya Devi is further stated to have disclosed that she in past also, in particular during the year 2019, had carried cannabis to

Delhi at the behest of Hira Singh-her son-in-law and had delivered the same to him on reaching Delhi. However, as per the police report, during

investigations, the call detail record of the mobile numbers used by the co-accused Vidya Devi and her son-in-law- Hira Singh did not establish their

simultaneous presence during that entire year in Delhi.

(vi). According to the police report, name of Hira Singh has been kept in column No.12 of the charge-sheet.

(vii). As per the recovery memo (part of charge-sheet), during personal search of the accused persons, only Rs.100/- were recovered from the

petitioner and Rs.270/-were recovered from co-accused Vidya Devi. Two separate recovery memos (one pertaining to the petitioner and the other

with respect to Vidya Devi) also reveal that though cannabis weighing 1.807 kg has been shown to have been recovered from the petitioner as well as

from co-accused Vidya Devi, however, the trolley bag, from which the contraband was allegedly recovered, finds mention only in the separate

recovery memo prepared in relation to accused Vidya Devi, wherein this bag is stated to be belonging to co-accused Vidya Devi only. As noticed

above, possession of the bag was not taken by the investigating agency for the reasons best known to it.

To sum up, the prosecution case is that on 15.02.2020, the petitioner and co-accused Vidya Devi were travelling in a Volvo bus. During search of this

bus, contraband cannabis weighing 1.807 kg was recovered from a trolley bag lying between their feet. But as noticed earlier, the passenger chart of

this bus raises doubts about presence of petitioner in the bus. The bag from which the contraband was allegedly recovered, was statedly lying between

the feet of petitioner and her sister/co-accused Vidya Devi. Both of them were stated to be sitting on the adjoining seats. For unexplained reasons,

possession of this bag was not taken by the investigating agency. Ownership of this bag comes under cloud, more so, in view of specifically pleaded

case of the petitioner that she had no role to play in the entire alleged episode. The recovery memo pertaining to the petitioner does not reflect the bag

to be hers. Rather, the recovery memo pertaining to co-accused Vidya Devi refers to the bag as belonging to Vidya Devi alone. In such

circumstances, petitioner’s alleged joint possession of contraband recovered from the bag also becomes uncertain. Petitioner is stated to belong to

a poor family. As per the recovery memo, Rs.100/- were recovered from her and Rs.270/- from the co-accused. In light of these facts, another

aspect, i.e. source of the contraband becomes relevant. As per police report, contraband was handed over to the petitioner and co-accused Vidya

Devi by latter’s son - in-law- Hira Singh. This contraband was meant to be delivered to Hira Singh by the accused persons in Delhi in lieu of

Rs.15,000/- to be paid by him to each of the accused persons. However, the police report says that no incriminating evidence was found against said

Hira Singh, therefore, he was neither arraigned as an accused nor cited as a witness in the case. His name has been kept in column No.12 of the

charge-sheet. Here another important point that comes in is that as per prosecution, during investigations, co-accused Vidya Devi disclosed that she

alone had been carrying cannabis to Delhi in similar fashion previously also (more particularly during the year 2019) at the instance of Hira Singh.

However, the police report says that call detail record of mobile numbers used by Vidya Devi and Hira Singh did not establish their simultaneous

presence in Delhi during 2019. This also gives credence to petitioner’s stand that she was not involved in any manner with the contraband

allegedly recovered in the FIR. As per status and police reports, petitioner has no criminal history. Though all these aspects are to be deliberated by

the learned Trial Court during trial, where, inter alia, complicity of the petitioner would require to be proved in accordance with law. However, on

cumulative consideration of all these facets, it can be safely inferred at this stage that the petitioner has been able to show that she neither had

knowledge nor possession of the contraband recovered in the FIR. There are reasonable grounds to believe that petitioner is not guilty of offence

alleged against her in the FIR. By way of abundant caution, it is clarified that the observations made in this judgment are not to be treated as if final

verdict of petitioner being not guilty has been pronounced. The observations made herein are only for limited purpose of adjudicating the bail petition in

light of riders placed in Section 37 of the NDPS Act. Petitioner is behind the bars for the last one year and three months. She is a local resident, a lady

and a mother of two minor children. Her husband has statedly left them after lodging of the FIR. She has no criminal history. Therefore, it can be

believed that she is not likely to commit any offence during bail. To ensure this, stringent conditions can also be imposed upon her. The petitioner is

aged 31 years and is in custody w.e.f. 16.02.2020. Challan stands presented before the competent Court on 04.06.2020. Petitioner is resident of

Gompa Road, Manali, Ward No.6, Post Office and Tehsil Manali, District Kullu, Himachal Pradesh, therefore, her presence can be ensured in the

trial.

Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on her furnishing personal bond in the sum

of Rs.75,000/- (Rupees Seventy Five Thousand only) with two local sureties in the like amount to the satisfaction of the learned trial Court having

jurisdiction over the Police Station concerned, subject to the following conditions:-

(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

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

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

(iv). The 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). 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 her 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, E-mail,

PAN Card, Bank Account Number, if any.

(vii). Petitioner shall not indulge in any criminal activities. It is made clear that in case the petitioner is arraigned as an accused in future in any FIR,

then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be

considered as a negative factor for consideration of her future bail application, if any.

In case of violation of any of the terms & conditions of the bail, respondent-State 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. Learned Trial Court shall decide the matter without being influenced by any of the observations made

hereinabove.

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

Copy dasti.