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2021 DIGILAW 64 (HP)

Sonia v. State of Himachal Pradesh

2021-02-10

JYOTSNA REWAL DUA

body2021
ORDER : Jyotsna Rewal Dua, J. 1. Petitioner, presently in custody w.e.f. 13.09.2020 for possessing 7.79 grams of heroin in FIR No. 135/2020, dated 13.09.2020, registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (The Act for short) at Police Station Damtal, District Kangra, H.P., is seeking regular bail under Section 439 of the Code of Criminal Procedure. Previous bail petition preferred by her was turned down by the learned Special Judge-II, Kangra at Dharamshala, District Kangra (HP), vide office order dated 16.10.2020. 2. Heard learned counsel for the parties and perused the status report, which is taken on record. 3. According to the status report, on 13.09.2020 at around 9.15 PM, a police party on routine patrolling duty noticed the petitioner driving a Scooty. On seeing the police officials, she stopped the Scooty and tried to turn it in a different direction. She appeared to be quite perplexed and in that state could not start the Scooty. Petitioner was thereafter nabbed by the police officials and inquired about her name, address and whereabouts. During search, an envelope was recovered from the dicky of the scooty, opening of which, led to recovery of some substance. On the basis of experience of the patrolling party personnel, the substance was determined as Heroin. Weight of the substance so recovered from the dicky of the Scooty measured 7.79 grams on the electronic scale. Entire procedure contemplated under the Code of Criminal Procedure as well as Narcotic Drugs and Psychotropic Substances Act was followed leading to registration of FIR in question. The bail petitioner was arrested on 13.09.2020 and is in custody ever since. 4. Learned counsel for the petitioner raised plea of false implication and innocence of the petitioner. He further submitted that investigation in the case is complete. Challan stands presented before the learned Court below. Learned counsel further submitted that the petitioner will abide by all terms and conditions, which may be imposed upon her in case of grant of bail and that she will not influence the witnesses or temper with the prosecution evidence in any manner. Learned Additional Advocate General opposed the grant of bail on the ground that the petitioner is habitual offender and in past also has been involved in five FIRs registered against her under the NDPS Act, pertaining to the years 2017-2018 and 2019, therefore, she should not be released. 5. Learned Additional Advocate General opposed the grant of bail on the ground that the petitioner is habitual offender and in past also has been involved in five FIRs registered against her under the NDPS Act, pertaining to the years 2017-2018 and 2019, therefore, she should not be released. 5. Quantity of heroin recovered from the petitioner in the instant FIR is 7.79 grams, which though falls in the commonly known as intermediate quantity but is very close to small quantity notified under the Act. Therefore, the rigors of Section 37 of the Act are not attracted in the instant case. As per the status report, petitioner has been shown to be involved in five FIRs' registered against her under the NDPS Act. However, learned counsel for the petitioner submits that in all these FIRs, the quantity of contraband involved is either 'small' or close to 'small quantity' notified under the Act. There is no mention in the status report as to whether the investigating agency has moved any application for cancellation of bail. Be that as it may. In the instant FIR for possessing 7.79 grams of heroin, petitioner is behind the bars for past about five months. Considering the facts and circumstances of the case, the nature of allegation levelled against the petitioner, coupled with the fact that the petitioner is a local resident of V.RO Bhadroya, Tehsil Nurpur, District Kangra H.P., her presence can be secured in the trial. The instant petition is allowed, however, with clear stipulation that in case the petitioner is found to be involved in future in any FIR under the NDPS Act then irrespective of quantity of contraband involved in the FIR, her bail in the instant application shall be liable to be canceled at the instance of Investigating Agency. Bail petitioner is ordered to be released in the above mentioned FIR, subject to her furnishing personal bond in the sum of Rs. 50,000/- with one local surety in the like amount to the satisfaction of the learned trial Court having jurisdiction over the concerned Police Station, subject to the following conditions:- (i) Petitioner is directed to join 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). However she shall not be called in the police station before 9.00 A.M. and after 5.00 P.M; (ii). Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever; (iii). Petitioner will not leave India without prior permission of the Court; (iv). 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). In case of launching of prosecutor, the 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 his 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, E- mail, PAN Card, Bank Account Number, if any; and (vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. In case of violation of any of the terms and conditions of the bail, respondent-State 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 main matter without being influenced by the above observations. With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.