Between vs The State Of Himachal
2021 Latest Caselaw 4212 HP

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       IN THE HIGH COURT OF HIMACHAL PRADESH
                       AT SHIMLA




                                                    .
          ON THE 27th DAY OF AUGUST, 2021





                       BEFORE





          HON'BLE MR. JUSTICE ANOOP CHITKARA

                CRIMINAL MISC. PETITION (MAIN)
                   No.1592 of 2021

    Between:-
    RAJ KUMARI
    AGED 59 YEARS
                    r      to

    W/O SHRI SURJAN SINGH
    R/O VILLAGE & P.O CHHANI
    TEHSIL INDORA
    DISTRICT KANGRA (HP)



                                   .... PETITIONER




    (BY SHRI VIJENDER KATOCH,
    ADVOCATE)





    AND





          THE STATE OF HIMACHAL
          PRADESH

                                  ..... RESPONDENT
    (BY SHRI NAND LAL THAKUR,
    ADDITIONAL ADVOCATE
    GENERAL WITH SHRI RAM LAL
    THAKUR AND SHRI SUNNY
    DHATWALIA, ASSISTANT




                                   ::: Downloaded on - 31/01/2022 22:57:59 :::CIS
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    ADVOCATE GENERALS)
    Reserved on 26.8.2021




                                                                   .
    Delivered on 27.8.2021





    ____________________________________________________________________

              This petition coming on for orders this day, the Court





    delivered the following:
                               JUDGMENT

    FIR    Dated        Police Station                    Sections
    No.
    183    29.11.2020  rDamtal, Distt. Kangra, H.P.       21 & 22 of NDPS Act

Mother of the main accused, who is aged around 58 years,

has come up before this Court under Section 439 CrPC, seeking regular bail.

2. Earlier, the petitioner had filed a bail petition before Ld. Special Judge-II, Kangra at Dharamshala, Circuit Court at

Indora, H.P. However, vide order dated 24-02-2021, passed in

Bail Application No. 39-D/XXII/2021, the application was dismissed.

3. In Para 15 of the bail application, it is mentioned that one case is pending against her under the NDPS Act.

4. Briefly, the allegations against the petitioner are that on the midnight of November 29, 2020, the DySP, who was also officiating as SHO of the Police station Damtal, received a secret information that Dharminder alias Govinda (son of the

petitioner) had received a large quantity of psychotropic substances, which he had concealed in his residential house.

.

The informant also disclosed that Dharminder would disburse

the same during the night. Upon this, the Dy.SP informed ASP, his superior officer, who further conveyed to him that he would

join him soon. After that, the Investigator and other police officials, along with the drug detection kit, etc., reached the

concerned place. In the meanwhile, they also associated independent witnesses. At 1:40 a.m., they reached in the village Channi at the house of Dharminder alias Govinda. When they

knocked on the door, a lady came out of the house and revealed her name as Raj Kumari (petitioner herein). The Investigator informed her about their intention to search the house and

informed Raj Kumari about her legal rights under S. 50 of the NDPS Act. When the Investigator inquired about Dharminder,

she said that he and his wife were sleeping on the upper floor.

On this, the Police officials went to the upper floor and knocked on the door, but no body opened it. After that, they made a

forced entry, but no one was inside the room. They further noticed that the back door was open. Subsequently, while searching the house, they noticed a secret cabin on the wall below the plyboard of the LCD panel. On removing its door, the Investigator recovered a considerable quantity of cash, jewelry, a white-colored plastic packet, and brown colored packet, which had some powder. On opening the same, it

contained brown colored substance resembling heroin, and on testing, it gave a positive result for diacetylmorphine (heroin).

.

The substance, when weighed on an electronic scale, measured

259 grams. The Police also recovered 1091 capsules of Ridley tramadol, gross weight 713 grams. The Police also recovered

cash amounting to Rs.14,50,000/-, besides gold, silver, etc. After that, the Investigator completed the procedural

requirements under the NDPS Act and the CrPC and arrested Raj Kumari. She revealed during her interrogation that Dharminder and his wife Monika had absconded from the

backside. Subsequently, the Investigator also arrested Dharminder alias Govinda and Monika. Based on these allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the bail petitioner, based on the pleadings

in the petition, submitted that the petitioner is totally innocent

and is an old lady having multiple age related problems, who was present in her house in natural course and her conduct in

not feeling away from the spot from where the recovery has been made is itself an indication that she had no idea about any illegal substance being carried out in the room of her son and daughter in law. He further submitted that recovery was also not made from the room used by the bail petitioner.

6. Mr. Nand Lal Thakur, Ld. Additional Advocate General opposed the bail and contended that the accused has yet not

discharged the presumption under S. 35 of the NDPS Act. Further, the quantity involved is commercial, and restrictions of

.

S. 37 of the NDPS Act do not entitle the accused to bail. The

arguments on behalf of the State are that this Court had granted bail to co-accused Monika (pregnant lady), who is daughter-in-

law of the petitioner, on different grounds and also because she had no criminal history, as such, reasoning for granting bail to

Monika by this Court on 24.7.2021 in Cr.MP(M) No.243 of 2021 will not apply in this case. While opposing the bail, the alternative contention on behalf of the State is that if this Court

is inclined to grant bail, such a bond must be subject to very stringent conditions.

REASONING:

7. In Sami Ullaha v Superintendent Narcotic Control

Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds

that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified. In Sunny Kapoor v State of

HP, CrMPM 2168 of 2020, (Para 15), this Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the

Prosecution points towards the exceptional circumstances, negating the bail.

.

8. As per prosecution's own case, the prior information was

that Dharminder alias Govinda had indulgence in the trade of narcotics and he had concealed the contraband in his residential

house. Furthermore, as per prosecution's own case, the recovery of contraband took place from Dharaminder's

bedroom, which was kept in a secret cabin on the wall below the plyboard of the LCD panel. Thus, Dharminder had concealed the contraband in his personal bedroom in such a

way that it would not be possible for his mother Raj Kumari to know about it.

9. Given above, the possibility cannot be ruled out at this

stage for the purpose of bail that whether Raj Kumari, the bail petitioner, i.e. mother of Dharminder was even aware of such

concealment by her son or not. She is already in jail since

29.11.2020 and furthermore, she was the first person, who had opened the door and was nabbed there. Although there is a

criminal history, which would raise suspicion against this lady but given the peculiar facts and circumstances of the present case, the previous history could not be a detriment to release her on bail in the present case. However, it is clarified that in case she is again arrained as an accused in any FIR pertaining to NDPS case having above small quantity, then the State shall not only apply for cancellation of her bail in the present case

but also in the previous FIR registered against her.

10. The possibility of the accused influencing the investigation,

.

tampering with evidence, intimidating witnesses, and the

likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal,

(2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can

impose restrictive conditions.

11. Without commenting on the case's merits, given the investigation stage, the period of incarceration already

undergone, and the circumstances peculiar to this case, the petitioner makes a case for release on bail.

12. Given the above reasoning, the Court is granting bail to the

petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of

bail bonds in chapter XXXIII of CrPC, 1973.

13. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial

precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another.

14. The petitioner shall be released on bail in the FIR mentioned above, subject to her furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and shall furnish two

sureties of Rs. Twenty-five thousand (INR 25,000/-) each, to the satisfaction of the Judicial Magistrate having the

.

jurisdiction over the Police Station conducting the

investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned

Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused

before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

15. In the alternative, the petitioner may furnish a personal

bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned

district.

Such Fixed deposits may be made from any of the

a)

banks where the stake of the State is more than 50%, or any

of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic

renewal of principal, and liberty of the interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to

the concerned Court.

d) If made online, then its printout, attested by any

.

Advocate, and if possible, countersigned by the accused,

shall be filed, and the depositor shall get the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has

been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number

as well as FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be

open for the petitioner to apply for substitution of fixed

deposit with surety bonds and vice-versa.

Subject to the proceedings under S. 446 CrPC, if any,

h)

the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.

16. The furnishing of the personal bonds shall be deemed

acceptance of the following and all other stipulations, terms, and conditions of this bail order:

.

a) The petitioner to execute a bond for attendance to the

concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and

undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an

appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp

number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change,

the petitioner shall immediately and not later than 30 days

from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or

the Court, or to tamper with the evidence.

d) The petitioner shall join the investigation as and when

.

called by the Investigating Officer or any Superior Officer;

and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it

will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police

premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-

bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if

any). [Hon'ble Supreme Court of India in Re Cognizance

for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:

1) At the first instance, the Court shall issue the summons.

2) In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

3) Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court

may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to

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the Judicial custody for a period for which the

concerned Court may deem fit and proper to achieve the purpose.

17. During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more

than seven years or violates any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for any

investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities. Otherwise, the

bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.

18. Any Advocate for the petitioner and the Officer in whose

presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order, in vernacular and if not

feasible, in Hindi/English.

19. In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and

such Court shall also be competent to modify or delete any condition.

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20. This order does not, in any manner, limit or restrict the

rights of the Police or the investigating agency from further investigation per law.

21. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the

trial Court advert to these comments.

22. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through

desirable behavior.

23. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can

download this order along with the case status from the official web page of this Court and attest it to be a true copy. In case

the attesting officer or the Court wants to verify the

authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting

bonds.

In the facts and circumstances peculiar to this case, the petition is allowed in the terms mentioned above.

(Anoop Chitkara) Judge.

August 27, 2021 (mamta).