CRMPM/2477/2022 of SHRESHTA DEVI Vs STATE OF HP on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MP(M) No. 2477 of 2022Date of Decision 30th Dec., 2022

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Shreshta Devi

…Petitioner

Versus

State of H.P.

….Respondent

Coram

The Hon’ble Mr. Justice Vivek Singh Thakur, J.

Whether approved for reporting?

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For the Petitioner: Mr. N.S. Chandel, Sr. Advocate withMr.Vinod Kumar Gupta, Advocate.For the Respondent: Mr. Hemant Vaid, AdditionalAdvocate General.

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Vivek Singh Thakur, J.

Petitioner, invoking Section 439 of the Code ofCriminal Procedure, has approached this Court for grant of bail incase FIR No. 81 of 2021, dated 14.7.2021 registered underSections 21, 22 and 29 of Narcotic Drugs and PsychotropicSubstances Act (for short ‘NDPS Act’), in Police Station Damtal,District Kangra Himachal Pradesh.

2. Status Report stands filed. Record was also madeavailable.

3. As per status report, after receiving reliableinformation from the Informer that co-accused Dinesh Kumar andhis mother Shreshta Devi are involved in business of sellingnarcotic drugs and in case of raid in their house, huge quantity ofnarcotic drugs can be recovered. After adopting the procedureprovided under Section 42(2) of NDPS Act, as there waspossibility of disappearance of evidence and contraband, houseof petitioner was raided after associating independent witnessesin the search and seizure process.

As per status report, Vikas Kumar @ Kaka son of

4. As per status report, Vikas Kumar @ Kaka son ofpetitioner was found at home and after informing him aboutinformation received, house was searched and during search,about 6 grams chitta and 282 grams capsules were recovered.After registration of FIR, on the basis of Ruka, Vikas @ Kaka wasarrested. It is further case of prosecution that as per statusreport, petitioner ran away from her house on noticing the policeparty approaching her house.

5. Petitioner had applied for anticipatory bail which wasrejected and thereafter, she surrendered on 7.9.2021 and sincethen, after remaining in police custody, she is in judicial custody.

6 As per State FSL report, recovered chita was 5.712grams and total weight of powder of capsules was 235.092grams.

7 It has been reported in status report that againstVikas, six cases were found registered in the past. Out of whichthree cases were of offences related to NDPS Act, whereas threecases were found registered against petitioner, out of which twocases were of Excise Act and one case was related toCommission of offence under NDPS Act in case FIR No. 182 of2017 dated 9.6.2017.

8It has been further submitted that late husband ofpetitioner Sardari Lal was also involved in five cases of NDPS Actduring his life from 2016 to 2018.

9 As per status report, on 14.12.2022 one witness hasbeen examined and now case has been fixed for recording ofmore witnesses on 17.3.2023.

10Learned counsel for petitioner has submitted thatpetitioner is a lady and she was not present on the spot and, infact, she is residing separately from her son in different floor ofhouse and it is not true that on seeing the police, she fled fromspot, rather she came to know about implication in the case bypolice on the basis of recovery of contraband from residence of Vikas, whereupon, she applied for anticipatory bail instead ofabsconding.

11It has been further submitted that petitioner isbehind the bars since last one year and three months andrecovered quantity of contraband in present case is intermediatequantity and thus rigors of Section 37 of NDPS are not attracted.Further that involvement of petitioner has been presumed bypolice on the basis of previous case history, whereas, she hasnothing to do with the recovery of contraband from her son VikasKumar from his residence. It has also been submitted that forcommission of offence by her husband or by son, petitionercannot be made to suffer. In furtherance to aforesaidsubmissions, prayer has also been been made to consider theprovisions of Section 437 Cr.P.C. related to women.

12Learned Additional Advocate General has submittedthat petitioner has been found involved in a heinous crime, whichis affecting adversely not only the individual, but also thesociety at large and spoiling the youth of State of HimachalPradesh and, therefore, petitioner does not deserve any leniencyand, thus, he has prayed for rejection of bail application.

13Taking into consideration, the entire facts andcircumstances, including period of detention, but, withoutcommenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and thisCourt, required to be considered at the time of adjudication ofbail application, I am of the opinion that petitioner may beenlarged on bail in present case at this stage.

14 Accordingly, petitioner is ordered to be enlarged onbail, at this stage, subject to furnishing personal bond in the sumof Rs. 1 lac with one surety in the like amount to the satisfactionof trial Court within a period of two weeks from today and alsosubject to any further conditions to be imposed by trial Court forassuring his presence during trial including the following furtherconditions:-

(i) That the petitioner shall make herselfavailable during the investigation aswell as trial on each and every date asand when required; available during the investigation aswell as trial on each and every date asand when required;

(iii) That the petitioner shall not directly orindirectly make any inducement, threator promise to any person acquaintedwith the facts of the case so as todissuade her from disclosing such factsto Court or to any police officer ortamper with the evidence. She shallnot, in any manner, try to overawe orinfluence or intimidate the prosecutionwitnesses;

(iv) That the petitioner shall not obstruct thesmooth progress of the investigation aswell as trial;smooth progress of the investigation aswell as trial;

(v) That the petitioner shall not jump overthe bail and shall inform, in writing,regarding change of address, land linenumber and/or mobile number, if any,in advance, to concerned Police Station;the bail and shall inform, in writing,regarding change of address, land linenumber and/or mobile number, if any,in advance, to concerned Police Station;

(vi) That the petitioner shall not committhe offence similar to the offence towhich she is accused or suspected orthe commission of which she issuspected;the offence similar to the offence towhich she is accused or suspected orthe commission of which she issuspected;

(vii) In the event of repetition ofcommission of offence, bail granted inpresent case shall be liable to becancelled on taking appropriate stepsby prosecution/police;commission of offence, bail granted inpresent case shall be liable to becancelled on taking appropriate stepsby prosecution/police;

(viii)

(viii) That the petitioner shall not leaveIndia without prior permission of Court;India without prior permission of Court;(ix) That petitioner shall not misuse herliberty in any manner.liberty in any manner.

15 It will be open to the prosecution to apply forimposing any such other or further condition on the petitioner asdeemed necessary in the facts and circumstances of the caseand in the interest of justice. It will also be open to the trialCourt/Magistrate to impose any other or further condition on thepetitioner 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 sucheventuality, prosecution may approach the competent Court oflaw for cancellation of bail in accordance with law.

17 Trial Court is directed to comply with the directionsissued by the High Court, vide communication No.HHC/VIG/Misc.Instructions/93-IV.7139 dated 18.3.2013.

18 Any observation made in this order shall not affectthe merits of case in any manner and will strictly confine for thedisposal of this bail application filed under Section 439 of Codeof Criminal Procedure 1973.

The petitioner is permitted to produce copy of orderdownloaded from the High Court website and the trial Courtshall not insist for certified copy of the order, however, passingof the order may be verified from the High Court website orotherwise.

Petition stands disposed of.

December 30, 2022 (ms)

(Vivek Singh Thakur) Judge