Sonia vs Unknown
2021 Latest Caselaw 5673 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

               ON THE 10th DAY OF DECEMBER 2021




                                                            .

                             BEFORE
          HON'BLE MS. JUSTICE JYOTSNA REWAL DUA





       CRIMINAL MISC. PETITION (MAIN) No. 2241 of 2021





    Between:-

    SONIA, AGE 32 YEARS D/O SH. NARENDER KUMAR,
    R/O V.P.O. BHADROYA, TEHSIL NURPUR, DISTRICT KANGRA,
    (PRESENTLY CONFINED IN JUDICIAL CUSTODY)


                                          .....PETITIONER

    (BY SMT. SHEETAL VYAS, ADVOCATE)


    AND

    STATE OF HIMACHAL PRADESH, THROUGH
    SECRETARY HOME, GOVERNMENT OF HIMACHAL




    PRADESH, SHIMLA, HIMACHAL PRADESH.            [





                                       .....RESPONDENT





     (BY SH. ASHWANI SHARMA, ADDITIONAL
    ADVOCATE GENERAL WITH SH. VIKRANT
     CHANDEL, DEPUTY ADVOCATE GENERAL)
    _______________________________________________________

                This petition coming on for orders this day, the
    Court passed the following:
                           ORDER

The petitioner seeks regular bail in FIR No.

135/2020, dated 13.09.2020, registered under Section 21 of

Narcotic Drugs and Psychotropic Substances Act (in short

'NDPS Act'), at Police Station, Damtal, District Kangra. In the

.

said FIR, the petitioner has been alleged to be in possession of

7.79 grams of heroine.

2. The petitioner was in custody in the aforesaid FIR

w.e.f. 13.9.2020. Her previous bail petition, Cr.MP(M) No.

291/2020 was allowed vide judgment dated 10.2.2021.

Subsequently, it transpired that the petitioner had concealed

from the court the factum of her having filed a prior bail

application bearing No. Cr.MP(M) No. 227/2021. In Cr.MP(M)

No. 227/2021, notice had been issued on 1.2.2021 for listing of

the matter in first week of March, 2021. Therefore, when

Cr.MP(M) No. 227/2021 was listed on 5.3.2021, the State

apprised the court that it would be filing an application for

cancellation of bail granted to the petitioner in Cr.MP(M) No.

291/2021. Subsequently, the State moved an application

Cr.MP(M) No. 721/2021 seeking cancellation of the bail

granted to the petitioner on 10.2.2021 in Cr.MP(M) No.

291/2021. Vide judgment dated 31.5.2021, Cr.MP(M) No.

721/2021 moved by the State was allowed and the bail granted

in favour of the petitioner on 10.2.2021 in Cr.MP(M) No.

291/2021 was cancelled. Liberty was granted to the petitioner to

file fresh petition in accordance with law. Vide same order,

.

Cr.MP(M) No. 227/2021 was dismissed as withdrawn.

As per the status report filed in the instant bail

petition, pursuant to the order dated 31.5.2021 cancelling the

bail earlier granted in favour of the petitioner, the respondent

arrested the petitioner on 24.10.2021. It is in the aforesaid

background that the petitioner has now filed this fresh bail

petition seeking her enlargement on regular bail.

3. The main allegations against the petitioner in the

FIR are that on 13.9.2020 from the dicky of the scooty being

driven by her, the respondent had recovered 7.79 grams of

heroine.

4. Learned counsel for the petitioner submitted that the

petitioner had not committed the offence alleged against her.

That the petitioner will abide by all the terms and conditions,

which may be imposed upon her in case of grant of bail and she

will not influence the witnesses or tamper with the prosecution

evidence in any manner.

Learned Additional Advocate General opposed the

grant of the bail on the ground that 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 & 2019, therefore, she should not be released.

5. The contraband allegedly recovered from the

possession of the petitioner though falls in the intermediate

quantity, however, it is nearer to the small quantity, notified

under the NDPS Act. Stringent rigors of Section 37 of the Act

are not attracted in the instant case. The petitioner though has

been shown to be involved in five FIRs registered against her

under the NDPS Act, however, the quantity of contraband

involved therein is either 'small' or close to 'small quantity'

notified under the Act. The petitioner has in all spent about six

months in custody for alleged possession of 7.79 grams of

heroine. After cancellation of the bail, the petitioner has spent

more than one month in custody. Police report under Section

173 of Code of Criminal Procedure stands filed on 10.11.2020.

Considering the facts and circumstances of the

case, the nature of the allegations levelled against the

petitioner, coupled with the fact that the petitioner is local

resident of V.P.O. Bhadroya, Tehsil Nurpur, District Kangra,

H.P., her presence can be ensured in the trial. The instant

petition is allowed, however, with clear stipulation that in cse the

petition 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

cancelled at the instance of Investigating Agency. Accordingly,

the petitioner is ordered to be released in the above mentioned

FIR, subject to her furnishing personal bond in the sum of Rs.

50,000/0 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 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. She shall fully cooperate the Investigating Officer and will appear before him in the

concerned police station as and when called in accordance with law;

(ii) Petitioner shall not tamper 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 prosecution, 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 her 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 her Aadhar Card,

.

Telephone Number, E-mail, PAN Card, Bank Account

Number, if any.

(vii) It is made clear that in case the petitioner is arraigned as an accused in future, in any FIR, more

particularly under the NDPS Act, then this 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 & 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 matter without being influenced by above

observations.

With the aforesaid observations, the present petition

stands disposed of, so also the pending miscellaneous

applications, if any.

Jyotsna Rewal Dua Judge 10th December, 2021 (vs)