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2021 DIGILAW 306 (HP)

Seema v. State of Himachal Pradesh

2021-05-10

JYOTSNA REWAL DUA

body2021
JUDGMENT : Jyotsna Rewal Dua, J (Oral) The petitioner seeks regular bail in FIR No.11/2021, dated 25.01.2021 registered under Section 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) at Police Station Damtal, District Kangra. 2. I have heard learned counsel for the parties and gone through the status report filed by the respondent-State as well as the documents placed on record. 3. The prosecution case in nutshell is that on 25.01.2021, while a police party was on patrolling duty near Excise Barrier Toki, it received a secret information at around 9.35 P.M. that one Sh. Aanchal and his family members were doing business of selling of Heroin in their house and further that a raid of their house at that point of time could lead to recovery of huge quantity of heroin. Since the information was reliable, therefore, the procedure as contemplated in law was followed by the police officials. Search of the house belonging to said Sh. Aanchal was carried out at around 10.10 p.m. in presence of Sub-Divisional Police Officer. During search, Aanchal alongwith his two daughters including bail petitioner and minor son Sarang was present in the house. His other son Sikandar was not present there. The raiding party dug up the courtyard within the boundary of the house. This digging led to recovery of a steel box containing Rs.1,74,000/from one place and from the other place a carry bag was recovered containing a brown coloured substance, which was ascertained as Heroin. The contraband weighed 377.8 grams. All codal formalities were completed. The recovery of contraband led to registration of the FIR in question. Petitioner alongwith her family members present in the house were arrested on 25.1.2021. Since then, petitioner is in custody. 4. Learned counsel for the petitioner contended that the petitioner was innocent and has been falsely implicated with the alleged offences. Petitioner’s presence in her house was in natural course and cannot lead to an inference that she was aware about the presence of the contraband in the house or that she was in conscious possession of the contraband or that she had control over the contraband allegedly recovered in the FIR or control over the spot from where the recovery was allegedly effected. 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 prosecution witnesses or temper with the prosecution evidence in any manner. Learned Deputy Advocate General while opposing the bail plea, argued that the instant is a case of recovery of commercial quantity of contraband, therefore, Section 37 of the NDPS Act would be attracted and that the petitioner has failed to satisfy the conditions prescribed under Section 37 of the NDPS Act. 5. Since quantity of the contraband recovered in the FIR is commercial, therefore, provisions of Section 37 of the NDPS Act are attracted, which read as under: “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 subsection (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.” 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 primafacie grounds. 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 primafacie 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. 20. 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.” 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-à-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. 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. 11. 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 482017 i.e. for more than 2 years and he is a young man aged about 25 years. He is a B.Tech Graduate. Reasonable possibility is there that he may be acquitted. He has been behind bars since his arrest on 482017 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. 12. We, however, feel that some stringent conditions will have to be imposed upon the appellant.” It would also be appropriate to refer to 2015 (6) SCC 222 titled as Mohan Lal Vs. State of Rajasthan, wherein it was observed that the terms “possession” consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control. Present was a case of recovery of commercial quantity of the contraband from beneath a courtyard within the house and for this reason all the family members residing in the house have been made accused in the FIR viz:Aanchal aged 56 years; Suman D/O Aanchal aged 20 years; Seema D/O Aanchal aged 21 years; Sarang S/O Aanchal aged 17 years and Sikandar S/O of Aanchal aged 36 years. But for Sikandar, all the other family members including the bail petitioner were arrested on 25.01.2021. Sikandar, who statedly absconded, was arrested on 26.3.2021. Sarang S/O Aanchal, being juvenile was released on bail by the learned Principal Magistrate Juvenile Justice Board Kangra on 25.2.2021. No doubt reverse burden under the NDPS Act would be on the petitioner to prove that she had no knowledge regarding the presence of the contraband and that she was not in conscious possession thereof. In the instant case, the facts as they emerge from the record are that the house belonged to coaccused Aanchal, who is father of the bail petitioner. The house was searched in cold winter month of January at around 10.10 P.M. The petitioner is daughter of coaccused Aanchal. In the instant case, the facts as they emerge from the record are that the house belonged to coaccused Aanchal, who is father of the bail petitioner. The house was searched in cold winter month of January at around 10.10 P.M. The petitioner is daughter of coaccused Aanchal. She is aged 21 years and is neither married nor employed. She is a student. Her presence in the house of her father would definitely has to be construed in natural course. No overt act has been alleged against her by the investigating agency. Status report does not indicate any criminal history of the petitioner rather it is her father (Aanchal) against whom many cases are statendly registered in the past. Further as per the status report, petitioner’s brother (Sikandar) had also absconded and could be arrested only on 26.3.2021. Mere presence of daughter (bail petitioner) aged 21 years and a student, in her home alongwith her father at around 10.10 P.M. in the month of January in a village in District Kangra would not lead to an automatic inference that she had any knowledge about the contraband allegedly recovered from beneath the courtyard within the house belonging to her father Aanchal. There is no material on record, which it can be deduced at this stage that the petitioner was in joint possession of the contraband alongwith other coaccused persons or that she was in exclusive possession of the contraband or was in control of the place from where the contraband was allegedly recovered. Status report also does not indicate that during investigation, petitioner had admitted her knowledge or possession about the contraband allegedly recovered in the FIR. Also, in the status report, there is no linkage of the petitioner to the source of the contraband. 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 the 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. 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 the 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 since 25.01.2021. Petitioner is an unmarried lady aged 21 years, a student and a local resident. 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. Petitioner is resident of Village, PO and TehsilIndora, District Kangra, 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 one local surety 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. However she shall not be called in the police station before 9.00 A.M. and after 5.00 P.M; (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). (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, Email, 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, 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. 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.