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2021 DIGILAW 619 (HP)

Sarishta Devi, w/o Sh. Sardari Lal v. State of H. P. Through Secretary Home, Government of H. P. , Shimla

2021-09-01

CHANDER BHUSAN BAROWALIA

body2021
ORDER : 1. The present bail application has been maintained by the petitioner, under Section 438 of the Code of Criminal Procedure, for grant of anticipatory bail in case FIR No. 81/2021, dated 14.07.2021, under Sections 21, 22 and 29 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. Further, she is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so she be released on bail. 3. Police report stands filed. As per the prosecution story, on 14.07.2021, at about 1:30 p.m., a police party was on patrol duty at Bhadroya toll barrier, where they received a secret information that Vikas Kumar alias Kaka (co-accused) and present bail petitioner, who is mother of Kaka, are drug peddlers and if there house is searched, huge contraband can be recovered. Due to lack of time, the police did not obtain any search warrant, as in that event the contraband can be relocated. Around 2:05 p.m., when police party reached at the house of accused, she after seeing the police party, fled towards Chakki Khadd. However, her son Kaka was present in the house, who was informed about the procedure and police party gave him their personal search. Thereafter, the police conducted the search of the house and entered into the room of Kaka, where near the bed two polythene packets were kept lying. When the first packet was opened and checked, it was containing light brown coloured substance and when it was checked with drug detection kit, it was heroin/chitta. On weighment, it was found to be 6 grams. When the police opened and checked the second packet, it was containing 429 maroon coloured capsules, which on weighment were found to be 282 grams. Thereafter, the police completed all the codal formalities and registered a case. Accused Kaka was arrested. During the course of investigation, the recovered contraband was sent to SFSL, Junga, for its chemical analysis and as per its report, actual weight of recovered heroin/chitta is 5.712 grams and it is a sample of Diacetyl Morphine, whereas, total weight of capsules is 277.563 grams and total weight of powder is 235.092 grams. Accused Kaka was arrested. During the course of investigation, the recovered contraband was sent to SFSL, Junga, for its chemical analysis and as per its report, actual weight of recovered heroin/chitta is 5.712 grams and it is a sample of Diacetyl Morphine, whereas, total weight of capsules is 277.563 grams and total weight of powder is 235.092 grams. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious offence and there is every possibility that in case at this stage she is enlarged on bail, she may flee from justice and may also tamper with the prosecution evidence. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned Counsel for the petitioner has argued that the alleged contraband was recovered from the son of the present petitioner and she was not at all present on the spot. She has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so anticipatory bail may be granted to the petitioner. Conversely, the learned Additional Advocate General has argued that the petitioner after seeing the police party fled the spot and she was very much present on the spot. He has further argued that the petitioner is drug peddler and she is spoiling the future of the youth and other cases in the similar offence and offence under Excise Act, are also pending against her. So, taking into consideration the seriousness of the offence, the present bail petition is required to be dismissed. 6. He has further argued that the petitioner is drug peddler and she is spoiling the future of the youth and other cases in the similar offence and offence under Excise Act, are also pending against her. So, taking into consideration the seriousness of the offence, the present bail petition is required to be dismissed. 6. At this stage, taking into consideration the seriousness of the offence, the manner in which the offence is alleged to have been committed, the role of the petitioner in the commission of alleged offence, the alleged recovered quantity of the contraband, which is near the commercial quantity, the fact that other cases of similar nature, including the cases under the Excise Act are pending against her, the fact that there is every possibility that if the petitioner is released on bail she may tamper with the prosecution evidence and may also flee from justice and also considering all other facets of the case and without discussing them at this stage, this Court finds that the present is not a fit case where the judicial discretion to admit the petitioner on anticipatory bail is required to be exercised in her favour. Accordingly, the petition, which sans merits, deserves dismissal and is dismissed. 7. However, the observations made hereinabove shall not be construed to have expressed an opinion on the merits of the main case and the same shall be adjudicated on its own.