Himachal Pradesh High Court
Nayanika vs State Of Himachal Pradesh on 7 January, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr.M.P.(M) No.2385 of 2022
Date of Decision: January 7, 2023
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Nayanika ...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.Ajit Sharma, Advocate.
For the Respondent: Mr.Harinder Singh Rawat, Additional
Advocate General.
Vivek Singh Thakur, J (oral)
Petitioner has approached this Court, seeking bail under Section 439 Code of Criminal Procedure (in short 'Cr.P.C.'), in FIR No.199 of 2021, dated 09.12.2021, registered in Police Station Aut, District Mandi, H.P., under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') and Section 279 of the Indian Penal Code (in short 'IPC).
2. Status report stands filed and record was also made available.
3. As per status report, on 09.12.2021, Constable Satish Kumar of Special Investigation Unit (SIU) Kullu telephonically informed to Police Station Aut, District Mandi, that they had laid a Nakka in front of Bhuntar Airport and during Nakka, a silver coloured Car No.HP-18A-4224, with two occupants i.e. one young 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 07/01/2023 20:37:05 :::CIS 2man and one young woman, did not stop on the Nakka and thus was being chased by the police party, and that Car had collided with Toll Plaza at Takoli, and as the area was falling in jurisdiction .
of Police Station Aut, District Mandi, H.P., request was made to take further action by sending Investigating Officer on the spot.
4. In furtherance to aforesaid information, police party from Police Station rushed to the spot and found an accidental Car on the spot with two occupants, one young man and young woman therein. The said Car was detained and covered by Alto Car parked behind it by Constable Satish Kumar and Constable Budhi Singh of SIU Kullu, who narrated the circumstances to police party of Police Station Aut.
5. Due to conduct of occupants, suspicion arose and, therefore, after joining two independent witnesses, occupants of the Car were inquired about reason for fleeing from the Nakka, but they could not give any satisfactory answer. On inquiry, the boy disclosed his name Moseen Ali Sayed alongwith his address and the girl disclosed her name as Nayanika (petitioner) alongwith her address, in presence of witnesses.
6. During search of the car, 1.803 kilogram charas was recovered which was kept under the driver seat. After following prescribed procedure, charas was taken in possession and seized. By sending Rukka to the Police Station, FIR was registered. In the facts and circumstances of the incident, Section 279 IPC was also added alongwith Sections 20, 25 and 29 of NDPS Act. Thereafter, petitioner, alongwith co-accused ::: Downloaded on - 07/01/2023 20:37:05 :::CIS 3 Moseen Ali Sayed, was arrested at 5.10 p.m. on 09.12.2021 and since then, after remaining in police custody, they are in judicial custody.
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7. As per status report, both accused were interrogated.
During interrogation, Moseen Ali Sayed disclosed that he purchased charas from Tek Ram. Tek Ram was not found at home. He had filed a petition for enlarging him on anticipatory bail, which was dismissed. He has not been arrested till date.
8. Learned counsel for the petitioner has submitted that as per status report, petitioner for travelling in the Car wherefrom huge quantity of charas has been recovered, has been made an accused, who has no previous history of involvement in any other case, much less for commission of offence under NDPS Act, and there is no cash transaction between the petitioner and co-accused Moseen Ali Sayed or Tek Ram and, therefore, petitioner, who is 22 years old female, deserves to be enlarged on bail particularly keeping in view the provisions of Section 437 Cr.P.C., because she is not instrumental or participant in procuring charas as she was having friendly relation with Moseen Ali Sayed and on his request, she had come for excursion/tour with him, who took her to Kullu District and parked his Car at a lonely place and went to meet someone and came back after some time, and during that time, petitioner was sleeping in the Car having no information or knowledge about the mission of co-accused Moseen Ali Sayed.
::: Downloaded on - 07/01/2023 20:37:05 :::CIS 49. It has further been submitted on behalf of the petitioner that during Trip Moseen did not spend his money, but made the petitioner to spend for expenses of meals etc. .
10. It has further been submitted that as per prosecution case, petitioner is not a prime accused, but has been made an accused under Section 29 of NDPS Act and, therefore, charge against petitioner, as framed on 02.01.2023, is also about commission of offence under Section 29 of the NDPS Act.
11. It has been further submitted by learned counsel for the petitioner that petitioner has been involved on the basis of suspicion only, but without any cogent and reliable evidence as neither co-accused nor any other person has alleged or disclosed any act of involvement of the petitioner in procuring the charas.
It has further been submitted that for suspicion only petitioner does not deserve to be kept behind the bars during the trial, as there is no direct or indirect link on record between her and Tek Ram or Moseen Ali Sayed, to establish her involvement in procuring the charas.
12. Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which is not only ruining the individuals, but also damaging the families, society and Nation and, therefore, petitioner is not entitled for bail.
13. Taking into consideration entire facts and circumstances, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by ::: Downloaded on - 07/01/2023 20:37:05 :::CIS 5 the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case, at this .
stage.
14. Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to her furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trialr Court, including the conditions enumerated hereinafter, so as to assure presence of petitioner/accused at the time of trial:-
(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 in accordance with law;
(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him 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) that the petitioner shall not commit the offence similar to the offence to which she is accused or suspected;::: Downloaded on - 07/01/2023 20:37:05 :::CIS 6
(v) that the petitioner shall not misuse her liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that in case petitioner indulges in repetition of .
similar offence(s) then, her bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) that the petitioner shall not leave the territory of India without prior permission; and
(ix) that the petitioner shall inform the Police/Court her contact number and shall keep on informing about change in address and contact number, if any, in future.
15. 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.
16. In case the petitioner violates any condition 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.
17. 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.
::: Downloaded on - 07/01/2023 20:37:05 :::CIS 718. Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
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19. Petition is disposed of in aforesaid terms.
20. Copy dasti.
21. Parties are permitted to produce copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify passing of order from Website of the High Court.
(Vivek Singh Thakur), Judge.
January 7, 2023 (Purohit) ::: Downloaded on - 07/01/2023 20:37:05 :::CIS