Himachal Pradesh High Court
Challo Devi vs State Of Himachal Pradesh on 10 May, 2023
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.460 of 2023
Decided on: 10.05.2023
Challo Devi ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the petitioners : Mr. N.K. Thakur, Senior Advocate, with
Mr. Divya Raj Singh, Advocate.
For the respondents : M/s Jitender Sharma, Tejasvi Sharma,
Pushpender Jaswal, Additional Advocate
Generals, with Mr. Gautam Sood, Deputy
Advocate General.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, filed under Section 439 of the Criminal Procedure Code, the petitioner has prayed for her enlargement on bail, in FIR No.14 of 2020, dated 02.02.2020, registered under Section 20 of the Narcotic Drugs and Psychotropic Substances (hereinafter to be referred as 'NDPS') Act, at Police Station Manali, District Kullu, H.P.
2. Learned Senior Counsel appearing for the petitioner has submitted that after the lodging of the FIR, the petitioner is in 1 Whether reporters of the local papers may be allowed to see the judgment?
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custody since 02.02.2020. Learned Senior Counsel further informs the Court that the trial is progressing at a very slow speed and there is no likelihood of the same being over in near future. The Court stands informed that the next date which has been now fixed by learned Trial Court for recording the statements of remaining prosecution witnesses is 11.08.2023. The Court also stands informed that the petitioner who happens to be a widow, before her arrest was residing with her father, who has recently passed away on 06.05.2023 and therefore also, the Court may consider the prayer of the petitioner sympathetically as the petitioner who allegedly was apprehended with 1 kg 130 grams of Charas, is in custody for more than three years now. He further submitted that statements of the prosecution witnesses which stand recorded till date, if gone through, would demonstrate that none has supported the case of the prosecution and there is each and every likelihood of the petitioner being acquitted on merit, but as completion of the trial is likely to take some time, therefore, it will be in the interest of justice in case present petition is allowed and the petitioner is ordered to be released on bail. Learned Senior Counsel further submitted that a sympathetic view be taken as the petitioner happens to be a lady and that too a widow.
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3. The petition is opposed by learned Additional Advocate General, on the ground that as commercial quantity of the contraband has been recovered from the possession of the petitioner, therefore, as the provisions of Section 37 of the NDPS Act are attracted in the case, the reasons which have been given by learned Senior Counsel, seeking bail of the petitioner have no relevance and the present petition thus deserves to be dismissed. Learned Additional Advocate General has also argued that earlier also the bail petition filed by the petitioner stands dismissed by this Court in terms of speaking order dated 17.08.2022 and as learned Senior Counsel appearing for the petitioner has not been able to point out any change in the circumstances, therefore also, present petition deserves to be dismissed.
4. I have heard learned counsel for the parties and have also carefully gone into the averments made in the petition as well as the documents appended therewith and the status report also.
5. The case of the prosecution is that the petitioner was apprehended with 1 kg 130 grams of Charas, which is a commercial quantity, while she was apprehended by a paroling party at around 10:40 p.m., walking alone from the VOLVO Bus Stand side towards the Bhoothnath Temple, Malani. It is not in dispute that the petitioner is in custody since 02.02.2020 and the recording of the ::: Downloaded on - 10/05/2023 20:46:07 :::CIS 4 .
statements of the prosecution witnesses is still underway. Though, this court is alive to the fact that an earlier petition filed by the petitioner has been dismissed on merit by this Court in terms of order dated 17.08.2022, however, as pointed out by learned Senior Counsel appearing for the petitioner that at that stage statements of the prosecution witnesses had not been recorded and as of today, statements of the prosecution witnesses are being recorded.
Furthermore, there is a sad development in the family of the petitioner as she is stated to have lost her father on 06.05.2023, which fact could not be disputed by the State, as a copy of the report issued by the Gram Panchayat Bharua, dated 09.05.2023 was made available for the perusal of the Court by learned Senior Counsel appearing for the petitioner, in terms whereof, the petitioner has indeed lost her father, late Shri Tikkam Ram, on 06.05.2023.
6. Besides this, Hon'ble Supreme Court in Mohd. Muslim Islam @ Hussain Versus State (NCT of Delhi), Criminal Appeal No(s). of 2023 [@ Special Leave Petition (CRL.) No.(s).915 of 2023], decided on 28.03.2023, has held while dealing with the provisions of Section 37 of the NDPS Act that a plain and liberal interpretation of the conditions under Section 37 of the NDPS Act (i.e. that Court should be satisfied that the accused is not guilty and would not commit any offence), would effectively exclude grant of ::: Downloaded on - 10/05/2023 20:46:07 :::CIS 5 .
bail altogether, resulting in punitive detention and unsanctioned prevented detention as well.Therefore, the only manner in which such special conditions as enacted under Section 37 of the Act can be considered within constitutional parameters is where the Court is reasonably satisfied on a prima facie look at the material on record (wheenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as enacted under Section 37 of the NDPS Act. Hon'ble Supreme Court has been further pleased to observe in the said judgment that grant of bail on ground of undue delay in trial, cannot be said to be fattered by Section 37 of the Act, given the imperative of Section 436A of the Criminal Procedure Code which is applicable to offences under the NDPS Act.
7. Taking a queue from the said observations made by Hon'ble Supreme Court of India, in the peculiar facts of the present case where the allegations of the prosecution is that the petitioner was apprehended with the contraband, i.e. weighing 1 kg 130 grams of Charas, which is slightly higher than noncommercial quantity and further taking into consideration the fact that the petitioner happens to be a widow lady who is in custody for more than three years, this petition is allowed, by ordering her release on bail in FIR ::: Downloaded on - 10/05/2023 20:46:07 :::CIS 6 .
No.14 of 2020, dated 02.02.2020, registered under Section 20 of the NDPS Act, at Police Station Manali, District Kullu, H.P., on her furnishing personal bail bond to the tune of Rs.2,00,000/ with one surety in the like amount, to the satisfaction of the learned Trial Court concerned, within a period of two weeks from today, subject to the following conditions: • i.) Petitioner shall 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 appropriate application; • ii.) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;•
iii) She shall not make any 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 the Court or the Police Officer; and •
iv) She shall not leave the territory of the State of Himachal Pradesh without prior permission of the learned trial Court.
8. It is clarified that findings, which have been returned by this Court while deciding this petition, are only for the purpose of adjudication of the present bail petition and learned Trial Court shall not be influenced, in any manner whatsoever, by any of the findings so returned by this Court in the adjudication of this petition during ::: Downloaded on - 10/05/2023 20:46:07 :::CIS 7 .
the course of the trial of the case. The petition stands disposed of in the above terms.
Downloaded copy of this order is valid for compliance.
(Ajay Mohan Goel) Judge May 10, 2023 (Rishi) ::: Downloaded on - 10/05/2023 20:46:07 :::CIS