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HIGH COURT OF HIMACHAL PRADESH
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
JEETO – Appellant
Versus
STATE OF HP – Respondent
CRMPM/2483/2021
BAIL - ND&PS ACT - HABITUAL OFFENDER - [The court held that even though the petitioner is a habitual offender, the prosecution cannot fetch any support from her being a habitual offender, as the facts, as emerge, have magnitude to paralyze the argument that the petitioner is a habitual offender.]
Fact of the Case:
The petitioner, a 65-year-old woman, was arrested for possession of 1.313 kgs of poppy straw. The prosecution alleged that she was a habitual offender with 15 other cases registered against her, mostly under the Excise Act or ND&PS Act.
Finding of the Court:
The court found that the petitioner was a permanent resident of the place, had no intention to tamper with evidence or flee from justice, and that her custody was not required for investigation. The court also considered her age and the fact that she had been in custody for about one and a half months.
Issues: Whether the petitioner should be granted bail despite being a habitual offender.
Ratio Decidendi: The court held that each offense has its own severable identity and that the presumption of being a habitual offender is only subtle and persuasive in nature. The court also considered the petitioner's age, the quantity of contraband recovered, her permanent residence, and the fact that her custody was not required for investigation.
Final Decision: The court allowed the bail application and ordered the petitioner to be released on bail subject to furnishing a personal bond and surety.
O R D E R
The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal
Procedure seeking her release in case FIR No. 141 OF2021, dated 23.11.2021, under Section 15-61-85 of the ND&PS Act, registered as Police Station Damtal, District Kangra, H.P.
2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. She is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as she is permanent resident of the place. No fruitful purpose will be served by keeping her behind the bars for an unlimited period, so she be released on bail.
3. Police report stands filed. As per the prosecution story, on 23.11.2021, a police team was present at place Dhangu, where the team got a secret tip-off that one Jeeto (petitioner herein), resident of village Channi, sells Chura-post (Bhukki) and she operates from her residence. Acting upon the secret tip-off, police associated two independent witnesses and proceeded towards the house of the petitioner. The petitioner was present in her house. Initially police personnel gave their personal search to the petitioner and thereafter house of the petitioner was searched. Police found a transparent polythene packet, which contained some brownish powder like substance, which was Chura-post (Bhukki). On weighment, the recovered contraband was found to be 1.313 kgs. Thereafter, the police completed all the codal formalities. Police seized the recovered contraband, recorded the statements of the witnesses, prepared the spot map and arrested the petitioner. A case under the apt section of ND&PS was registered and the investigation commenced. The recovered contraband was sent for scientific analysis and the report of the analysis revealed that the contraband is a sample of poppy straw. During the course of investigation, the petitioner divulged that she had purchased the recovered contraband from some unknown truck driver. As per the police, fifteen more cases, most of them are either under Excise Act or ND&PS Act, have been registered against the petitioner and the present is sixteenth case against the petitioner, thus the petitioner is a habitual offender and in case, at this stage, if she is enlarged on bail, she may tamper with the prosecution evidence, may flee from justice and may again repeat the offence, so the bail application of the petitioner may be dismissed.
4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, including the police report, carefully.
5. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is permanent resident of District Kangra, thus, she is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, as investigation is almost complete, nothing remains to be recovered at the instance of the petitioner and challan is likely to be presented in the learned Trial Court soon. The custody of the petitioner is not at all required by the police for investigation, so the petitioner is required to be enlarged on bail by allowing the instant bail application. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence and it is not the first time that she was found illegally possessing the contraband, as fifteen more cases either under the Excise Act or under the ND&PS Act are pending against her, so she is a habitual offender and in case, at this stage, she is enlarged on bail, she may tamper with the prosecution evidence and may also flee from justice. It is prayed that the ba
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