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2020 DIGILAW 391 (HP)

Kaushalya Devi v. State of Himachal Pradesh

2020-07-03

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The matter is taken up through video conference. 2. The present bail application has been maintained by the petitioner under Section 438 of the Code of Criminal Procedure seeking her release, in the event of her arrest, in case FIR No. 60 of 2020, dated 11.05.2020, under Section 18 of the ND&PS Act, registered in Police Station Theog, District Shimla, H.P. 3. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. She is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by sending her behind the bars, so she be released on bail. 4. Police report stands filed. The prosecution story, as emanates from the records, is that on 11.05.2020 police received a secret tip-off that Kaushalya Devi (petitioner herein) is cultivating opium plants in her agricultural fields located in village Jadeog, P.O. Sandhu, Tehsil Theog, District Shimla, H.P. Police, acting upon the secret information, visited the spot, clicked photographs, conducted measurement and recovered some opium plants. In total 2071 opium plants were uprooted by the police. Thereafter, the police completed all the codal formalities and a case under Section 18 of the ND&PS Act was registered against the petitioner. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious crime. There is possibility that in case at this stage, if the petitioner is enlarged on bail, she may flee from justice. The petitioner can also tamper with the prosecution evidence, so her application be dismissed. 5. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, including the police report, carefully. 6. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by sending the petitioner behind the bars, as she is joining and co-operating in the investigation, nothing is to be recovered from her. He has further argued that no fruitful purpose will be served by sending the petitioner behind the bars, as she is joining and co-operating in the investigation, nothing is to be recovered from her. He has argued that the custody of the petitioner is not at all required by the police for investigation and quantity involved is intermediate quantity, so the bail application be allowed. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence, so at this stage, in case she is enlarged on bail, she may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed. 7. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is neither in a position to flee from justice nor in a position to tamper with the prosecution evidence, as she is permanent resident of the place. Her custodial interrogation is not at all required by the police, as she is joining and co-operating in the investigation, nothing remains to be recovered at the instance of the petitioner and the quantity of contraband involved is intermediate quantity, so the application be allowed and the petitioner be enlarged on bail. In order to get lateral support to his arguments, the learned Counsel for the petitioner has placed reliance on a judgment passed by co-ordinate Bench of this Court rendered in Cr. M.P. (M) No. 871 of 2020, titled Deep Ram vs. State of Himachal Pradesh, wherein in similar and approximate facts and circumstances the petitioner was enlarged on bail. 8. At the very outset, it would be profitable to extract Para No. 8 of the judgment (supra), which is as under: “8. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule and S. 2 (xxii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.” In the present case also the contraband found in the opium plants falls in intermediate quantity, therefore, Section 37 of the NDPS Act has no role to play. 9. At this stage, after considering the different facets of the case in hand, keeping in view the judgment (supra) and analyzing the facts with the settled legal paradigms, this Court finds that the involved quantity of recovered contraband is intermediate, so rigors of Section 37 of the NDPS Act are not applicable to the present case. So, the judgment (supra) is fully applicable to the facts of the present case. 10. On the other hand, this Court after giving thoughtful and incisive consideration to the facts that the petitioner is joining and cooperating in the investigation, she is not in a position to tamper with the prosecution evidence nor in a position to flee from justice, as she is permanent resident of the place, her custody is not at all required by the police, nothing remains to be recovered at her instance, considering the fact that the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted, the fact that the custodial interrogation of the petitioner is not at all required by the police, as she is joining and co-operating in the investigation and also considering the overall facts, which have come on record, and without discussing the same at this stage, this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of her arrest, is required to be exercised in her favour. Accordingly, the petition is allowed and it is ordered that the petitioner, in the event of her arrest, in case FIR No. 60 of 2020, dated 11.05.2020, under Section 18 of the ND&PS Act, registered in Police Station Theog, District Shimla, H.P. shall be released on bail forthwith in this case, subject to her furnishing personal bond in the sum of Rs. 25,000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of the Investigating Officer. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner will 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 the Investigating Officer or Court. 11. In view of the above, the petition is disposed of.