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2021 DIGILAW 443 (HP)

Paramjeet v. State of Himachal Pradesh

2021-07-22

CHANDER BHUSAN BAROWALIA

body2021
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The instant bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking her release, in case FIR No. 57 of 2021, dated 07.05.2021, under Section 21-61-85 of the ND&PS Act, registered at Police Station Damtal, District Kangra, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. She is permanent resident of District Kangra, thus 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 keeping her behind the bars, so she be released on bail. 3. Police report stands filed. Succinctly, the prosecution story, as emanates from the records is that on 07.05.2021, a police team was on routine patrol and law & order duty and when, around 04:55 p.m. the team was at Bhadroya Toll Tax Barrier, police got a secret tip-off that one Paramjeet @ Gausha (petitioner herein) deals in sale-purchase of narcotics and in case her premises are raided, huge amount of narcotics can be recovered. Acting upon the secret tip-off, police associated independent witnesses and reached the residence of the petitioner, where she was present. Initially, members of the police team gave their personal search to the petitioner, thereafter, the premises of the petitioner were searched. During the search operation, police found a carry-bag having some currency notes and transparent polythene, which contained some brownish substance. The recovered substance was tested through Drug Detection Kit and found to be heroin and weighed 6.17 grams. Thereafter, all the codal formalities were completed. Police prepared the spot map, arrested and medically examined the petitioner. The recovered contraband, on being chemically examined, found to be Diacetyl Morphine (Heroin). As per the police, Rajat Kumar has been booked in another ND&PS case and is in judicial custody. As per the police report, four more cases of ND&PS are pending against the petitioner. On 05.07.2021, after completion of investigation, challan stands presented in the learned Trial Court. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner is habitual offender and she deals in illegal sale-purchase of narcotics. As per the police report, four more cases of ND&PS are pending against the petitioner. On 05.07.2021, after completion of investigation, challan stands presented in the learned Trial Court. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner is habitual offender and she deals in illegal sale-purchase of narcotics. There is possibility that in case at this stage, if the petitioner is enlarged on bail, she may flee from justice and may tamper with the prosecution evidence, so her bail application be dismissed. 4. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, including the police report, carefully. 5. The learned Senior 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 permanent resident of District Kangra, thus, she is 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 keeping the petitioner behind the bars for an unlimited period, as investigation is complete, nothing remains to be recovered at the instance of the petitioner and challan stands presented in the learned Trial Court. The custody of the petitioner is not at all required by the police for investigation, so the petitioner is required to be enlarged on bail by allowing the instant bail application. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence and it is not the first time that she was found illegally possessing the contraband, as four more cases under the ND&PS Act are pending against him, so she is a habitual offender and in case, at this stage, she is enlarged on bail, she may tamper with the prosecution evidence and may also flee from justice. It is prayed that the bail application of the petitioner be dismissed. 6. In rebuttal the learned Senior 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 District Kangra. It is prayed that the bail application of the petitioner be dismissed. 6. In rebuttal the learned Senior 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 District Kangra. Her custodial interrogation is not at all required by the police, as the investigation is complete, nothing remains to be recovered at the instance of the petitioner, even challan stands presented in the learned Trial Court. Moreover, the petitioner, being a lady, cannot be kept behind the bars for an unlimited period, so the petitioner may be enlarged on bail by allowing the instant bail petition. 7. The main thrust of the prosecution, in the instant case, is that the petitioner is a habitual offender, as in addition to the present case, four more cases under the ND&PS Act have been registered against her, so in case he is enlarged on bail she may indulge in similar offence again. 8. Admittedly, four more cases under the ND&PS Act are pending against the petitioner, however, it goes without saying that the cardinal and jurisprudential principle of criminal justice is that each offence has its own severable identity, so, earlier, even if, some/many offences of same nature are committed by an accused, the offence, which is under consideration, cannot be seen with the spectacles of other offences committed/alleged against the accused. Though, the general derivable presumption from the other offences, committed/alleged against an accused, is only that he/she is a habitual offender and that presumption is subtle and only persuasive in nature in adjudicating accused offence, which is under consideration of the Court. Certainly, the Courts should not at all ignore such a subtle and persuasive presumption, however, as held above, each offence has its own severable identity, so the Courts should avoid predilection in adjudicating the offence under consideration. In the instant case, as per the records, the alleged recovery was effected from the house of the petitioner and recovered contraband is of intermediate quantity, i.e. 6.17 grams. 9. In a catena of judicial pronouncements it has been held that ‘bail is rule and jail is exception’ and the purposes of keeping an accused in custody is to secure his/her presence, not to allow him/her to thwart the justice and many more. 9. In a catena of judicial pronouncements it has been held that ‘bail is rule and jail is exception’ and the purposes of keeping an accused in custody is to secure his/her presence, not to allow him/her to thwart the justice and many more. As the petitioner is permanent resident of the place, she is not in a position to flee from justice, quantity of recovered contraband is intermediate and the fact that investigation stands complete and even challan has been presented in the learned Trial Court, so the argument that the petitioner is a habitual offender loses its sheen. This Court sees no possibility of petitioner’s feeling or thwarting the process of justice. In the peculiar facts and circumstances of the case, this Court finds that even if the petitioner is a habitual offender, the prosecution cannot fetch any support from her status of habitual offender. 10. Now, adverting to the instant case, this Court at this stage, after considering the fact that the petitioner is a lady aged 42 years, the fact that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as she is permanent resident of District Kangra and also considering the facts that investigation is complete, challan stands presented in the learned Trial Court, custody of the petitioner is not at all required by the police, nothing remains to be recovered at the instance of the petitioner, considering the quantity of the recovered contraband, i.e. 6.17 grams, the fact that the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted and also considering the overall facts, which have come on record and without discussing the same at this stage, finds that the present is a fit case where the judicial discretion to admit the petitioner on bail, is required to be exercised in her favour. Accordingly, the petition is allowed and it is ordered that the petitioner, in case FIR No. 57 of 2021, dated 07.05.2021, under Section 21/61/85 of the ND&PS Act, registered at Police Station Damtal, District Kangra, H.P. shall be released on bail forthwith in this case, subject to her furnishing personal bond in the sum of Rs. 50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. 50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. 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. 12. Needless to say that the observations made hereinabove are only confined for adjudication of the present case and the same shall have no bearing on the merits of the main case, which shall be adjudicated on its own.