Himachal Pradesh High Court
Reserved On: 18.03.2025 vs State Of Himachal Pradesh on 21 March, 2025
2025:HHC:6954 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 455 of 2025 Reserved on: 18.03.2025 Date of Decision: 21.03.2025.
Sundari ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Ashok Kumar Tyagi, Advocate. For the Respondent : Mr. Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 24 of 2025, dated 29.01.2025, for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act), registered at Police Station Paonta Sahib, District Sirmour, H.P. As per the prosecution, the police recovered 08 grams of heroin from the petitioner's house. The rigours of Section 37 of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2025:HHC:6954 the ND&PS Act do not apply to the present case. The petitioner's husband is suffering from heart ailment and diabetes. The petitioner is responsible for looking after him. The investigation is complete, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence the petition.
2. The petition is opposed by filing a status report asserting that the police were on patrolling duty on 29.1.2025. They received a secret information at 4.00 PM that the petitioner and her son were selling heroin, and in case of search, a huge quantity of heroin could be recovered. The information was reduced into writing and was sent to the supervisory officer. The police associated two independent witnesses and reached the petitioner's house. The petitioner, her husband and her son were found present. The petitioner's husband disclosed that his toes were amputated due to diabetes, and he was unable to move. He was under treatment at PGI, Chandigarh and Sai Hospital, Paonta Sahib. One purse containing ₹63,000/- and 08 grams of heroin was found kept beneath the mattress in the room of the petitioner's son. The police also conducted a 3 2025:HHC:6954 personal search of the petitioner and her son, but no contraband was found. The police arrested the petitioner and her son. The recovered substance was confirmed to be heroin in the report of SFSL. FIR No. 154 of 2022, dated 15.7.2022, was also registered against the petitioner for possessing 2.81 grams of heroin. Hence, the status report.
3. I have heard Mr. Ashok Kumar Tyagi, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent-State.
4. Mr. Ashok Kumar Tyagi, learned counsel for the petitioner, submitted that the petitioner is innocent and she was falsely implicated. The petitioner was not found in possession of any contraband and the heroin was recovered from the room occupied by the petitioner's son. The petitioner's husband is suffering from diabetes and heart blockage. There is no one to look after him. The petitioner and her son have been arrested and put behind the bars; therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State, submitted that the petitioner was 4 2025:HHC:6954 involved in the commission of a similar offence earlier. She would indulge in the commission of a similar offence in case of her release on bail. Therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as follows: -
"12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:
"14. The language of Section 437(3) CrPC which uses the expression "any condition ... otherwise in the interest of justice", has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under 5 2025:HHC:6954 Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail." (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose "any condition" on the grant of bail and observed in the following terms: --
"15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed." (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the application for bail and observed:
"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied 6 2025:HHC:6954 upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial."
(Emphasis supplied)
8. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
9. The petitioner is a woman. Section 480 of Bhartiya Nagrik Surkasha Sanhita (BNSS) provides that the Court may direct a person accused of or suspected of commission of any non-bailable offence be released on bail if such person is a child or a woman or is sick or infirm. This provision applies to a person brought before the Court other than the High Court or Court of Session, but the Courts have to keep this special provision in mind while considering the bail application of the persons falling in the categories mentioned in Section 480 of BNSS. It was laid down by the Karnataka High Court in Nethra vs State of Karnataka (12.05.2022 - KARHC): MANU/KA/2055/2022 that a woman can be released on bail even in case of murder 7 2025:HHC:6954 because of special provisions under Section 437 of CrPC. It was observed:
"In terms of Section 437 of the Cr.P.C., bail can be granted in a non-bailable offence on three circumstances as depicted in the proviso: (i) being a person below 16 years of age, (ii) a woman and (iii) sick or infirm. The petitioner is a woman. She is entitled to consideration under Section 437 of the Cr.P.C. Before applying the aforesaid provision to the facts of the case and considering the case of the petitioner for enlargement on bail, it is germane to notice the application of the said provision by coordinate Benches of this Court all in the case of offences punishable under Section 302 of the IPC and they being women.
xxxxxxx All the afore-quoted judgments rendered by the coordinate Benches of this Court were considering the purport of Section 437 of the Cr.P.C. and were cases where accused No. 1 therein were women, and all of them alleged of offence punishable under Section 302 of the IPC for commission of murder. It is also a matter of record that the alleged accomplice in the act of murder, Vijay Kumar, is granted bail on 13-04-2022 by the learned Sessions Judge. For the aforesaid facts, the statute, i.e., Section 437 of the Cr.P.C. and its application in the judgments of three coordinate Benches all would ensure to the benefit of the petitioner to be enlarged on bail notwithstanding the fact that the offence alleged is under Section 302 of the IPC. It is not the law that bail should always be denied in a case where the offence punishable is death or life imprisonment. In exceptional cases, if the statute permits and the facts not being so gory and grave criminal antecedents shrouding the culprit, the consideration in such cases would be different."8
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10. A perusal of the status report shows that the petitioner's husband was found sitting on the sofa. His toes were amputated, and he was unable to move. He was under treatment from PGI, Chandigarh and Sai Hospital, Paonta Sahib. This corroborates the petitioner's version that her husband is seriously ill and requires care. The petitioner and her son are behind the bars, and there is no one to look after him. therefore, the petitioner is entitled to bail on this consideration as well.
11. The status report also shows that the police went to the room of Akshay and found a purse kept beneath the mattress. The police checked the purse and found ₹63,000/- and 08 grams of heroin. The recovery of heroin from a purse kept beneath the mattress on Akshay's bed, prima facie, casts doubt regarding the involvement of the petitioner.
12. It was submitted that the petitioner was involved in the commission of a similar offence, and she is not entitled to bail. It is true that criminal antecedents of a person are important factors while granting bail, however, in the present case, the petitioner has to take care of her husband, who is 9 2025:HHC:6954 unable to take care of himself. It is a special consideration in the present case justifying the grant of bail to her.
13. It was submitted that the petitioner can indulge in the commission of the crime in case of her release on bail. This apprehension can be removed by laying down the appropriate conditions, and the same is not sufficient to deny bail to the petitioner.
14. It was submitted that the petitioner can flee from justice or intimidate the witnesses. There is nothing on record in the status report to show that the petitioner had intimidated the witnesses in the previous case or had tried to escape. Therefore, this apprehension is not based on any material, however, the prosecution is at liberty to approach the Court in case the petitioner interferes with the fair trial of the case.
15. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of ₹50,000/- with one surety of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: -
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2025:HHC:6954 (I) The petitioner will not intimidate the witnesses, nor will she influence any evidence in any manner whatsoever;
(II) The petitioner shall attend the trial in case a charge sheet is presented against her and will not seek unnecessary adjournments;
(III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending visit to the SHO, the Police Station concerned and the Trial Court;
(IV) The petitioner will surrender her passport, if any, to the Court; and (V) The petitioner will furnish her mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/ WhatsApp/ Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.
16. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.
17. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of Model Central Jail, Nahan, District Sirmour, H.P. and the learned Trial Court by FASTER.
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18. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 21st March, 2025 (Chander) Digitally signed by KARAN SINGH GULERIA Date: 2025.03.21 12:48:52 IST