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2023 DIGILAW 94 (HP)

Kalpna v. State of Himachal Pradesh

2023-02-28

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Petitioner has approached this Court by way of instant petition under Section 439 of Cr.P.C. in case FIR No. 76/2021, dated 06.05.2021, registered under Section 21 of the Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Indora, District Kangra, H.P. 2. Petitioner is in custody since 06.05.2021. 3. As per prosecution case, on 06.05.2021, at about 4:30 pm, during routine patrol, police party was accompanied by independent witnesses and they noticed petitioner approaching the National Highway. At the sight of police party, petitioner got perplexed. She started walking back and simultaneously took out a polythene packet from her clothes and throwing the same on the road. She was apprehended by police. On search, polythene packet thrown by the petitioner was found containing ‘Heroin/Chitta’ weighing 6.7 grams. The case was registered and petitioner was formally arrested. The challan was presented and the petitioner is undergoing trial. 4. This Court has been informed during the course of hearing that only two witnesses were examined till 27.02.2023 and three witnesses, out of remaining fourteen witnesses were summoned for 27.02.2023. 5. It has been contended by learned counsel for the petitioner that the petitioner has been in custody since 06.05.2021. The trial against her has been delayed inordinate and she cannot be made to suffer incarceration for indeterminate period. It is further submitted that the petitioner is permanent resident of Village Channi, Tehsil Indora, District Kangra, H.P. and she will not delay the trial in any manner and will remain available on each and every date. 6. On the other hand, learned Additional Advocate General has opposed the prayer for bail, on the ground that the petitioner had earlier approached this Court for grant of bail in the same case three times. For the first time, her bail petition was dismissed as withdrawn, second time, the petition was rejected on merits and third time, the bail petition was dismissed as no changed circumstance was found to have taken place. It is contended that no circumstance has changed even after the passing of previous order by this Court and as such, the petitioner is not entitled to any bail. 7. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through relevant record. 8. It is contended that no circumstance has changed even after the passing of previous order by this Court and as such, the petitioner is not entitled to any bail. 7. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through relevant record. 8. Record reveals that on more than one occasions, petitioner has approached this Court for grant of bail in the same FIR. On 01.07.2021, petitioner had withdrawn her bail petition bearing Cr.MP(M) No. 1068/2021. On 27.10.2021, the second bail petition of the petitioner bearing Cr.MP(M) No. 1791 of 2021 was rejected by the Co-ordinate Bench of this Court, on the following grounds:- "5. It is not in dispute that two FIRs are already registered against the petitioner under the provisions of the ND&PS Act. The factors, which have to be taken into consideration by a Court while adjudicating a bail petition under Section 439 of the Code of Criminal Procedure inter alia are (a) gravity of the offence alleged; (b) whether, if released on bail, the petitioner is likely to jump the bail, and thus ,evade trial or influence the outcome of the same by trying to win over the witnesses; and (c) whether there is possibility that, if released on bail, the petitioner may again indulge in similar activities. Incidentally, all these conditions are independent of each other. 6. In this case, there is previous history of the petitioner of indulging in activities prohibited under the provisions of the ND&PS Act. The petitioner, while on bail in previous cases registered against her under the provisions of ND&PS Act, has again been found to have allegedly indulged in the commission of the offences punishable under the NDPS Act. In this view of the matter, though the contraband allegedly recovered from the petitioner is of intermediate quantity, yet, this Court is of the view that the petitioner does not deserves to be released on bail. Accordingly, this petition, being devoid of merit, is dismissed. 7. In this view of the matter, though the contraband allegedly recovered from the petitioner is of intermediate quantity, yet, this Court is of the view that the petitioner does not deserves to be released on bail. Accordingly, this petition, being devoid of merit, is dismissed. 7. The affidavit, which has been filed in compliance to previous order dated 24.09.2021,is taken on record and it is impressed upon the authority concerned to ensure that appropriate applications are filed before the appropriate Court(s) for recalling of the bail orders, in the cases, where the petitioners, after their release on bail, are again found to have indulged in the commission of similar activities." 9. Thereafter, the petitioner had approached this Court by way of Cr.MP(M) No. 187 of 2022, which was dismissed on 28.01.2022, on the ground that there was no changed circumstance. 10. Petitioner is in custody now for one year and nine months approximately. Only two out of total sixteen witnesses were examined till 27.02.2023. There is no allegation against petitioner that the delay in trial is attributable to her. The curtailment on the right of liberty can be ensured through reasonable restrictions only. The facts of the case clearly reveal that the right of speedy trial available to the petitioner has been seriously violated. There is substance in the contention of learned counsel for the petitioner that petitioner cannot be detained in perpetuity without completing the trial as per mandate of law. This definitely can be taken to be a changed circumstance for considering the bail petition of the petitioner. 11. As noticed above, the right to speedy trial is a valuable constitutional right available to the petitioner. Petitioner has already suffered prolonged incarceration. She cannot be allowed to be detained in custody for indeterminate period. 12. As regards the involvement of petitioner in other two cases, it can be noticed that the case registered against petitioner vide FIR No. 271/2017 pertains to intermediate quantity of Poppy Husk and other case was registered for small quantity i.e. 2.01 grams of ‘Heroin/Chitta’. None of these cases have yet been decided. Thus, the petitioner is facing only the allegations since 2017. 13. The allegations against petitioner are subject to proof. A long list of witnesses still remain to be examined. In the given circumstances, the trial against petitioner is not likely to be concluded till lapse of considerable time. 14. None of these cases have yet been decided. Thus, the petitioner is facing only the allegations since 2017. 13. The allegations against petitioner are subject to proof. A long list of witnesses still remain to be examined. In the given circumstances, the trial against petitioner is not likely to be concluded till lapse of considerable time. 14. Petitioner is permanent resident of Village Channi, Tehsil Indora, District Kangra, H.P. She has a minor daughter to be looked after. There is no likelihood of her absconding from the course of justice. Only concern of this Court, at this stage, is to secure fair trial, for which, appropriate terms can be imposed. 15. Keeping in view the facts and circumstances of the case, the bail petition is allowed and petitioner is ordered to be released on bail in case FIR No. 76/2021, dated 06.05.2021, registered under Section 21 of ND&PS, Act, at Police Station Indora, District Kangra, H.P., on her furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial court. This order shall, however, be subject to the following conditions:- i) Petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion. ii) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand. iii) Petitioner shall be liable for immediate arrest in the instant case in the event of petitioner violating the conditions of this bail. (iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial. 16. Any expression of opinion herein-above shall have no bearing on the merits of the case and shall be deemed only for the purpose of disposal of this petition.