Naina Devi vs State Of Himachal Pradesh
2021 Latest Caselaw 3322 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.M.P. (M) No. 836 of 2021

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                                                       Date of decision:                2.8.2021





    Naina Devi                                                                   ...Petitioner.





                                               Versus
    State of Himachal Pradesh.                                                  ...Respondent.

    Coram

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.

    Whether approved for reporting?1

    For the Petitioner:                   Mr.Rajiv Jiwan, Senior Advocate aongwith
                               r          Mr. Ajit Sharma, Advocate, through Video
                                          Conferencing.

    For the Respondent:                   Mr. Desh Raj Thakur, Additional Advocate
                                          General, through Video Conferencing.



    Vivek Singh Thakur, Judge




                      Petitioner,       invoking provisions of Section 439 of code of

Criminal Procedure (Cr.P.C) , has approached this Court seeking regular

bail in case FIR No. 159 of 2020, dated 10.10.2020, registered in Police

Station Damtal, District Kangra, H.P. under Sections 21 and 29 of Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act)

2. Status report stands filed, wherein it is stated that on

11.10.2020, police party had gone to village Chhanni in search of petitioner

Naina Devi in case FIR No. 158 of 2020, for disclosure statement of main

accused therein that they had purchased 9.41 gram heroin/chitta from her

for a consideration of Rs. 25,000/-.Police party on reaching Panchpeer

temple in village Chhanni in the police vehicle, had noticed a lady coming

from opposite side, who on noticing police vehicle had started running back,

whereupon police officials had stopped the vehicle nearby her and they also

noticed that the lady had thrown a polythene bag in the bushes on the side

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

of the road. The lady was detained with the help of lady Constable and, on

inquiry, she disclosed her name and address as petitioner . During search of

polythene bag thrown by the petitioner, currency notes of Rs. 23,000/-,

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electronic weighing machine, brown colour powder and transparent

polythene bag were found. With the help of Drug Detection Kit, the powder

was detected heroin/chitta weighing about 10.95 grams. It is also stated in

the status report that petitioner has been found involved in various cases

under N.D.P.S Act.

3. Complying codal procedure, contraband recovered from

polythene bag of petitioner was taken in possession and seized and after

registration of FIR on sending a ruka to the Police Station, petitioner was

arrested on 11.10.2021 and since then after remaining in police custody,

the petitioner is in judicial custody.

4. Petitioner had approached this Court earlier also by filing

petition bearing No. Cr.MPM No. 281 of 2021, which was dismissed as

withdrawn on 8.3.2021.

5. Learned counsel for the petitioner has submitted that petitioner

is a lady of 35 years of age and is behind the Bars since 11.10.2020/- for

alleged supply of 9.41 grams of heroin to co-accused Gaurav @ Bunty and

Moksh. He has further submitted that even if prosecution case is taken to

be true as it is then also rigors of Section 37 of N.D.P.S do not apply to the

present case and considering the quantity involved in the case possibility of

imposition of sentence at the most, is about one year or slightly more than

that whereas petitioner is under detention for last nine months and being

lady also, keeping in view the provisions of Section 437 Cr.P.C, she

deserves to be enlarged on bail.

6. It is also submitted that she has minor children to take care of

them and therefore, lenient view deserves to be taken. It is also submitted

that being detention for last nine months, petitioner has suffered

incarceration which is violative of right to liberty provided to the citizens

under Article 21 of the Constitution of India.

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7. It is also submitted that Gaurav Kumar @ Bunty co-accused in

case FIR No.58/2020 has been enlarged on bail by Co-ordinate Bench of

this High Court vide judgment dated 6.1.2021 passed in Cr.MP(M) No. 2177

of 2020, titled as Gaurav Kumar alias Bunty Vs. State of Himachal Pradesh

and further that another co-accused in that case namely Moksh has also

been enlarged onr bail by learned Special Judge, Kangra at

Dharamshala,HP.

8. Learned Additional Advocate General had submitted that drug

addiction is increasing in the Society day-by-day and persons like petitioner

are responsible for such a menace which is destroying not only individual

but families and societies at large, and therefore, he has prayed for rejection

of the bail application.

9. Considering factors and principles relevant to be considered at

the time of deciding the bail application with reference to the facts and

circumstances of the present case including quantum of recovered

contraband and period of detention and also submissions made by learned

counsel for the petitioner as well as learned Additional Advocate General,

but without commenting on merit of the contention of rival parties, I am of

the considered opinion that, at this stage, petitioner may be enlarged on

bail.

10. Accordingly, petitioner is ordered to be enlarged on bail,

subject to furnishing personal bond in the sum of Rs. 1,00,000/- with one

surety in the like amount to the satisfaction of trial Court/concerned

Magistrate or Special Court within a period of three weeks from today and

also subject to following further conditions:-

(i) That the petitioner shall make herself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any

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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 Court or to any Police Officer or tamper with the evidence. She shall not, in any manner,

try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv)

(v)

that the petitioner shall not commit the offence similar to the offence to which she is accused or suspected;

that the petitioner shall not misuse her liberty in any

manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that the petitioner shall keep on informing about the

change in address, landline number and/or mobile number, if any, for her availability to Police and/or during trial;

(viii) that the petitioner shall not leave India without permission

of the Court.

11. It will be open to the prosecution to apply for imposing and/or

to the trial Court to impose any other condition on the petitioner as deemed

necessary in the facts and circumstances of the case and in the interest of

justice and thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem necessary in the

interest of justice.

12. In case the petitioner violates any conditions imposed upon her,

her bail shall be liable to be cancelled. In such eventuality, prosecution may

approach the competent Court of law for cancellation of bail, in accordance

with law.

13. Learned trial Court is directed to comply with the directions

issued by the High Court, vide communication No.HHC.VIG./Misc.

Instructions/93-IV.7139 dated 18.03.2013.

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14. Observations made in this petition hereinbefore shall not affect

merits of the case in any manner and are strictly confined for the disposal of

the bail application.

15. The petitioner is permitted to produce copy of order downloaded

from the High Court website and the trial Court shall not insist for certified

copy of the order, however, it may verify the order from the High Court

website or otherwise.

The petition stands disposed of in the aforesaid terms.

Dasti copy on usual terms.

                                                      (Vivek Singh Thakur),
     nd




    2     August, 2021                                      Judge.
           (veena)