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2020 DIGILAW 622 (HP)

Jeeto Devi v. State of Himachal Pradesh

2020-09-21

VIVEK SINGH THAKUR

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JUDGMENT Vivek Singh Thakur, J. - Present petition has been filed under Section 439 Cr.P.C. seeking regular bail in case FIR No. 50 of 2018 dated 16.3.2018 registered under Sections 20, 29 of Narcotics Drugs and Psychotropic Substances Act (herein after referred as "NDPS Act" for short) in Police Station Ghumarwin, District Bilaspur, Himachal Pradesh 2. Status report stands filed, wherein it is stated that on 16.3.2018 at about 3:45 P.M., at Masaur Mor (Masaur Curve), a Car Centro No. HP-74-3618 was intercepted and checked, which was occupied by two persons, namely, Manohar Lal and Bablu and during checking, person sitting on the driver seat had tried to hide a bag with his legs after putting it on the foot mat. On checking, 5.031 KG charas was found in the said bag, which was seized in accordance with law. 3. During police remand, aforesaid accused were interrogated about the source of the contraband, but they did not disclose anything, whereupon their call details report was obtained, which revealed that on 15.3.2018, they were in District Kullu. Thereafter on interrogating again, accused Manohar Lal disclosed that he had been purchasing charas from one Devi Singh R/o District Kullu, who has been arrested along with charas by the Police of Police Station Bhunter and thus lodged in Kanda jail and on 14.3.2018, he had contacted Jeeto Devi (petitioner) wife of aforesaid Devi Singh on her mobile about availability of 5 KG charas, whereupon petitioner Jeeto Devi had asked them to come on next morning at 7 A.M. at Bhalan in the parking and accordingly they purchased the charas from the petitioner Jeeto Devi on that day. 4. On disclosure of co-accused, house of Jeeto Devi (petitioner) was searched, but nothing objectionable was recovered from there. 4. On disclosure of co-accused, house of Jeeto Devi (petitioner) was searched, but nothing objectionable was recovered from there. During investigation, it has surfaced that on 14.3.2018, there was conversation between Manohar Lal and Jeeto Devi on their mobile numbers 8894074481 and 9817565933 and this fact was corroborated by call details record and the mobile number 8894074481 was recovered from accused Manohar Lal during his jama-talashi and mobile number 98175765933 was found in the name of one Man Dass S/o Dola Ram, brother of petitioner Jeeto Devi and he, in his statement, has stated that Jeeto Devi was using this mobile number during the year 2017-18 and this fact has also been corroborated by her another brother Tek Ram and in the call details record also Jeeto Devi has been found to have had talks with her brothers from this mobile number. 5. As per call details report, location of Jeeto Devi and Manohar Lal on 15.3.2018 was found in Kullu. Lastly, it is stated that next date in the trial is fixed for recording of evidence of prosecution on 16th and 17th October, 2020. 6. Learned counsel for the petitioner submits that petitioner has been framed under Section 29 of NDPS Act on the basis of alleged disclosure of co-accused, which is not admissible evidence at all and further supplementary challan with respect to petitioner has been filed by the Police without taking any permission from the Court and also in view of judgments passed by co-ordinate Bench of this Court in Cr.M.P. (M) No. 299 of 2020, dated 29.6.2020, titled Satish Singh Vs. State of Himachal Pradesh and Cr.MP (M) No. 1045 of 2017, dated 19.9.2017, titled Pawan Kumar Vs. State of H.P., petitioner is entitled for bail. 7. Learned counsel for the petitioner further submits that prosecution is heavily relying upon the statements of brothers of petitioner, namely, Man Dass and Tek Ram, for justifying their allegation that petitioner was using mobile number 9817565933, whereas their statements have never been recorded by Police and they have also sworn affidavits to this effect and, therefore, on this ground also petitioner is entitled for bail. Learned counsel for the petitioner has further submitted that nothing has been recovered from possession of the petitioner. 8. So far as judgments passed by co-ordinate Bench of this Court are concerned, those pertain to different FIRs, but not related to the present case. Learned counsel for the petitioner has further submitted that nothing has been recovered from possession of the petitioner. 8. So far as judgments passed by co-ordinate Bench of this Court are concerned, those pertain to different FIRs, but not related to the present case. So far as implication of petitioner on the basis of statements of co-accused is concerned, as appears from prosecution story, it is not only on the basis of disclosure by co-accused, but on the basis of a statement duly corroborated by call details record and location of petitioner and co-accused and also on the basis of statements of her brothers. 9. Co-Accused were intercepted and arrested by Police along with more than 5 KG charas near Ghumarwin in District Bilaspur, whereas petitioner is a resident of District Kullu and on disclosure by co-accused, the Police, on the basis of material collected in evidence, has found corroborative material, therefore, though merit of evidence is to be assessed by the trial Court, however, for material on record, it cannot be said that ex-facie no case is made out against the petitioner in the given facts and circumstances. 10. Further for filing supplementary challan on the basis of investigation carried out after report submitted under Section 173 Cr.P.C., there is no necessity for applying permission from the concerned Magistrate, as Section 173(8) Cr.P.C. provides that nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub Section (2) has been forwarded to the Magistrate and whereupon such investigation, the Officer Incharge of Police Station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed. Therefore, plea of petitioner is not tenable that supplementary challan filed by the Police, without seeking permission of the Court to further investigate the matter, is not admissible. 11. Plea of the petitioner that nothing has been recovered from the petitioner is also irrelevant for the reason that petitioner has been arrayed as accused for supplying contraband by invoking provisions of Section 29 of NDPS Act and it is not the case of the prosecution that contraband was recovered from the petitioner. 12. 11. Plea of the petitioner that nothing has been recovered from the petitioner is also irrelevant for the reason that petitioner has been arrayed as accused for supplying contraband by invoking provisions of Section 29 of NDPS Act and it is not the case of the prosecution that contraband was recovered from the petitioner. 12. In view of aforesaid facts and circumstances, particularly keeping in view the nature and gravity of the offence, quantum of contraband and also considering the advance stage of trial, I did not find that it is a fit case for enlarging the petitioner on bail at this stage. 13. Accordingly, petition is dismissed with direction to the parties to ensure their effective representation before the trial Court on 16-17th October, 2020 and also on subsequent dates fixed by the trial Court, enabling the trial Court to record evidence on that date, if any, present in the Court and in view of notification dated 7.8.2020 issued by the High Court, trial Court is also directed, by taking all safety measures, to complete the evidence in present case as early as possible, so as to conclude the trial expeditiously. Parties are also directed to avoid unnecessary adjournments, but to cooperate and assist the Court to record the evidence and conclude the trial at the earliest. 14. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.