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2025 DIGILAW 978 (HP)

Sunita @Sana v. State of Himachal Pradesh

2025-05-09

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (hereinafter referred to as ‘ BNSS ’), applicant-Sunita @Sana has sought her release, on bail, during the pendency of the trial, in case FIR No.156 of 2024, dated 23.09.2024, registered under Sections 20, 21, 25, 27 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Manali, District Kullu, H.P. 2. According to the applicant, she is innocent person and has falsely been implicated, in the present case and has been arrested by the police for allegedly possessing 112 gms of charas and 5 grams of chitta/heroin. 3. As per applicant, the contraband, allegedly recovered in the present case, does not fall within the definition of ‘commercial quantity’, as such, rigors of Section 37 of the NDPS Act are not applicable, in this case. 4. It is the case of the applicant that in the present case, investigation is complete and charge-sheet has been submitted, before the Court of learned Special Judge-II, Kullu, H.P. 5. According to the applicant, she had earlier tried her luck by moving similar applications, before the Court of learned Special Judge-II, Kullu, Himachal Pradesh. However, the same were dismissed vide orders dated 22.11.2024 and 22.01.2025, respectively. 6. The applicant is stated to be in judicial custody since 23.09.2024 and according to her, the chances of conclusion of trial, against her, are not so bright. As such, she has prayed that no useful purpose would be served by keeping her in the judicial custody, that too, for the indefinite period. 7. Learned counsel appearing for the applicant has submitted that even, on the ground of parity, the applicant is entitled to be released on bail, as her co-accused, namely Manoj Kumar @Pathak, has already been released on bail, by this Court, vide order dated 07.03.2025, passed in CrMP(M) No.370 of 2025, titled as ‘Manoj Kumar @Pathak Vs. State of Himachal Pradesh’. 8. Apart from this, Mr. Anubhav Chopra, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 9. On the basis of the above facts, a prayer has been made to allow the bail application. Anubhav Chopra, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 9. On the basis of the above facts, a prayer has been made to allow the bail application. 10. When, put to notice, the police has filed the status report, disclosing therein, that Investigating Officer of the present case, along with other police officials, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics. 11. It is the further case of the police that when, the police party was conducting the routine checking of vehicles, near Smahan Bazaar at NH-03, then, at about 12:30am, he stopped a vehicle, being driven by its driver, coming from Manali side and going towards Bahang side, for checking and its registration number was found to be HP58-A-7320 make Maruti Brezza, red colour. The driving licence of the driver was demanded and on checking, the same was found to be issued in the name of Manoj Kumar. Manoj Kumar has disclosed to the police that he is owner of the vehicle, but, is not having RC of the said vehicle. 12. It is the further case of the police that thereafter, the smell of smoke of cigarette was found inside the vehicle and on the rear seat, a man and a woman were found sitting there. On enquiry, the woman disclosed her name as Sunita, R/o District Nainital (applicant) and the man disclosed his name as Anil Kumar, R/o Manali. On checking of the vehicle, charas, weighing 112 grams and chitta, weighing 5 grams, were found, which was taken into possession and other codal formalities were completed. 13. After registration of the FIR, the police has arrested the applicant. 14. The contraband, so recovered, was sent to SFSL, Junga, after complying with the provisions of Section 52A of the NDPS Act. Subsequently, positive report, regarding the contraband, has been received from SFSL, Junga. Thereafter, on the basis of opinion, given by Medical Officer, Section 27 of the NDPS Act has been added, in this case. 15. The charge-sheet is stated to have been filed in the Court of learned Additional Sessions Judge, Kullu (hereinafter referred to as the ‘trial Court’). 16. Subsequently, positive report, regarding the contraband, has been received from SFSL, Junga. Thereafter, on the basis of opinion, given by Medical Officer, Section 27 of the NDPS Act has been added, in this case. 15. The charge-sheet is stated to have been filed in the Court of learned Additional Sessions Judge, Kullu (hereinafter referred to as the ‘trial Court’). 16. As per status report, co-accused of the applicant, namely Manoj Kumar @Pathak, has already been released on bail, by this Court. 17. On the basis of the above facts, a prayer has been made to dismiss the bail application. 18. Heard. 19. In the present case, investigation is complete, as, as per the status report, the police has submitted the challan in the learned trial Court. This fact is sufficient to demonstrate that the custodial interrogation of the applicant is no longer required by the police. 20. In this case, the contraband, allegedly stated to have been recovered, is 112 grams of charas and 5 grams of heroin/chitta. Admittedly, the said contraband does not fall, within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of the NDPS Act are not applicable, in this case. 21. Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, in that eventuality, the presumption of innocence is still available to the applicant, as the bail application cannot be rejected merely as a matter of punishment, since, pre-trial punishment is prohibited under the law. 22. Even otherwise, the chances of conclusion of trial against the applicant, in near future, are not so bright. As such, she cannot be kept in judicial custody, that too, for the indefinite period. 23. Moreover, the applicant is also entitled for grant of bail on the basis of parity, as, her co-accused, namely Manoj Kumar @Pathak, has already been released on bail, by this Court, vide order dated 07.03.2025, passed in CrMP(M) No.370 of 2025, titled as ‘Manoj Kumar @Pathak Vs. State of Himachal Pradesh’. 24. 23. Moreover, the applicant is also entitled for grant of bail on the basis of parity, as, her co-accused, namely Manoj Kumar @Pathak, has already been released on bail, by this Court, vide order dated 07.03.2025, passed in CrMP(M) No.370 of 2025, titled as ‘Manoj Kumar @Pathak Vs. State of Himachal Pradesh’. 24. So far as the apprehension of the police that the applicant is the resident of adjoining State i.e. Uttrakhand and may not be available for the trial, in case, ordered to be released on bail, is concerned, merely the fact that the applicant is the resident of adjoining State, cannot be a ground for dismissing the application, as, the same is hit by Article 15 of the Constitution of India. Even otherwise, reasonable conditions can be imposed, in case, she is ordered to be released on bail. 25. Considering the peculiar facts and circumstances of the present case, according to which, the police has added Section 27 of the NDPS Act, in this case, on the basis of the report of Medical Officer, this Court is of the view that the applicant deserves to be released on bail, being victim of the drugs. 26. In view of the discussions, made hereinabove, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 27. Consequently, the applicant is ordered to be released, on bail, in case FIR No.156 of 2024, dated 23.09.2024, registered under Sections 20, 21, 25, 27 and 29 of the NDPS Act, with Police Station Manali, District Kullu, H.P., on her furnishing personal bonds in the sum of Rs.1,00,000/-, with two sureties of the like amount, to the satisfaction of the learned trial Court. However, this order shall be subject to the following conditions:- a) The applicant shall appear before the IO, as and when, directed by the IO to do so and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing the appropriate application; b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; d) The trial Court/police, before releasing the applicant on bail, may satisfy itself about the permanent address of the applicant. e) The applicant shall furnish her fresh address to the learned trial Court, in case, there is any change in her abode.” 28. In addition to this, the applicant is also directed that in case, she intends to leave the territory of District Kullu, in that eventuality, she will intimate the same to learned trial Court/IO/SHO, Police Station Manali, District Kullu, H.P. 29. Any of the observations, made hereinabove, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application. 30. It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant. 31. The Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Kullu, H.P., through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 32. In case, applicant is not released within a period of seven days, from the date of grant of bail, the Superintendent of District Jail, Kullu, H.P., is directed to inform this fact to the Secretary, DLSA, Kullu. The Superintendent of District Jail, Kullu, H.P., is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.