Bombay High Court
Girishkumar Swaminath Verma vs State Of Maharashtra on 18 January, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:3510
22 ba 3676 of 2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3676 OF 2023
Girishkumar Swaminath Verma ... Applicant
versus
State of Maharashtra ... Respondent
Mr. Anil G. Lalla with Mr. Aryan K. Kotwal i/by Lalla and Co., for Applicant.
Mr. S.R.Aagarkar, APP for State.
Mr. Ravindra Pawar, HC, Khar Police Station present.
CORAM: N.J.JAMADAR, J.
DATE : 18 JANUARY 2024
P.C.
1. Heard the learned Counsel for the parties.
2. This is an application for bail in NDPS Special Case No.195 of 2019
arising out of C.R.No.98 of 2019 registered with Khar Police Station for the offences
punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
3. The indictment against the applicant is that the applicant was found in
possession of 2.516 kg and co-accused Sudha Tiwari was found in possession of 2.518
kg Charas. Learned Counsel for the applicant submitted that the applicant has
preferred this application primarily on the ground of long incarceration as an under-
trial prisoner. In fact, by an order dated 30 November 2022 in BA No.3108 of 2022
preferred by co-accused Sudha A. Tiwari, this Court had directed that the trial be
SSP 1/10
22 ba 3676 of 2023.doc
concluded expeditiously and preferably within a period of three months thereof, as the
Court was informed that the trial has commenced and only 5-6 witnesses were to be
examined. However, the trial could not be concluded as directed. Hence, the said co-
accused Sudha Tiwari preferred an application for bail and by an order dated 18
October 2023 in BA No.1413 of 2023 this Court granted bail to the co-accused Sudha
Tiwari taking into account the long period of incarceration.
4. By an order dated 30 November 2022 in BA No.3108 of 2022, while
expediting the trial, this Court observed, inter alia, as under :
"4. My attention was invited to page 90 of the paper book where it is
reflected that the applicant was asked whether she would like to be searched
before the Gazetted Officer or the Magistrate. There is an endorsement on
such a report by the applicant that she has no objection to be searched by the
officers. Learned Counsel for the applicant submits that she may not have
understood the contents in the said report. It is not possible for me to
consider the submissions at this stage as there is a report on record indicating
that she was informed of her right to be searched before the Gazetted Officer
or the Magistrate. However, considering that the trial has commenced and
the witnesses have been examined, further that only 5 to 6 witnesses are
being examined, this is a fit case where the trial Court can be requested to
expedite the trial. The trial Court is requested to expedite the trial and
conclude the same as far as possible within a period of three months from
today."
5. In the order dated 18 October 2023 in BA No.1413 of 2023, noting the
aforesaid order, this Court released the co-accused Sudha Tiwari on bail observing,
SSP 2/10
22 ba 3676 of 2023.doc
inter alia, as under :
"5. Paragraph 3 of the order dated 30/11/2022 reveals that not much
progress is made in the trial since the passing of the order on 30/11/2022.
The trial Court was requested to expedite the trial and conclude the same as
far as possible within 3 months from 30/11/2022. Undoubtedly, there is
heavy workload which the trial Court has to deal with. The applicant is now
incarcerated as an undertrial for almost more than 4 years and 5 months.
The trial is still likely to take some more time to conclude. Further, the
applicant, a woman has a child along with her in custody. I am inclined to
enlarge the applicant on bail. No criminal antecedents are reported against
the applicant. There is nothing on record to indicate that the trial is
protracted at the instance of the present applicant. Learned APP submits
that the applicant is from Uttar Pradesh and therefore there is likelihood of
the applicant evading trial. In my opinion, the applicant can be enlarged on
bail by imposing conditions."
6. The applicant has been in custody since 22 May 2019. Evidently, the
applicant is in custody since more than four years and 8 months. Undoubtedly, the
applicant is found in possession of the commercial quantity of the contraband articles.
The interdict contained in Section 37 of the Act comes into play. However, it has
consistently been held that rigours of the restrictions on the grant of bail prescribed by
the special enactments melt down where the accused has been incarcerated for a long
period, thereby depriving the accused the right to life guaranteed under Article 21 of
the Constitution of India.
7. In the case of Shaheen Welfare Association V/s. Union of India and
SSP 3/10
22 ba 3676 of 2023.doc
Ors.1 the Supreme Court enunciated that the stringent provisions can be justified on
the presumption that the trial of the accused will take place without undue delay. The
observations in paragraph No.10 read as under :
"10. Bearing in mind the nature of the crime and the need to protect
the society and the nation, TADA has prescribed in Section 20(8) stringent
provisions for granting bail. Such stringent provisions can be justified
looking to the anture of the crime, as was held in Kartar Singh case 2, on the
presumption that the trial of the accused will take place without undue
delay. No one can justify gross delay in disposal of cases when undertrials
perforce remain in jail, giving rise to possible situations that may justify
invocation of Article 21."
8. In Union of India V/s. K.A.Najeeb (supra), where the accused was
facing trial for the offences punishable under the Unlawful Activities Prevention Act
and the rigours of Section 43-D(5) of the said Act, were attracted, observed as under :
"12. Even in the case of special legislations like the Terrorist and
Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and
Psychotropic Substances Act, 1985 ("NDPS") which too have somewhat
rigorous conditions for grant of bail, this Court in Paramjit Singh v. State
(NCT of Delhi)3, Babba v/s. State of Maharashtra4 and Umarmia v/s. State
of Gujarat5 enlarged the accused on bail when they had been in jail for an
extended period of time with little possibility of early completion of trial.
The constitutionality of harsh conditions for bail in such special enactments,
has thus been primarily justified on the touchstone of speedy trials to ensure
1 (1996) 2 SCC 616
2 (1994) 3 SCC 569
3 (1999) 9 SCC 252
4 (2005) 11 SCC 569
5 (2017) 2 SCC 731
SSP 4/10
22 ba 3676 of 2023.doc
the protection of innocent civilians.
15. This Court has clarified in numerous judgments that the liberty
guaranteed by Part III of the Constitution would cover within its protective
ambit not only due procedure and fairness but also access to justice and a
speedy trial. In Supreme Court Legal Aid Committee (Representing
Undertrial Prisoners) v/s. Union of India6, it was held that undertrials cannot
indefinitely be detained pending trial. Ideally, no person ought to suffer
adverse consequences of his acts unless the same is established before a
neutral arbiter. However, owing to the practicalities of real life where to
secure an effective trial and to ameliorate the risk to society in case a
potential criminal is left at large pending trial, Courts are tasked with
deciding whether an individual ought to be released pending trial or not.
Once it is obvious that a timely trial would not be possible and the accused
has suffered incarceration for a significant period of time, Courts would
ordinarily be obligated to enlarge them on bail.
17. It is thus clear to us that the presence of statutory restrictions like
Section 43-D(5) of UAPA per-se does not oust the ability of Constitutional
Courts to grant bail on grounds of violation of Part III of the Constitution.
Indeed, both the restrictions under a Statue as well as the powers exercisable
under Constitutional Jurisdiction can be well harmonised. Whereas at
commencement of proceedings, Courts are expected to appreciate the
legislative policy against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already undergone has
exceeded a substantial part of the prescribed sentence. Such an approach
would safeguard against the possibility of provisions like Section 43-D (5) of
UAPA being used as the sole metric for denial of bail or for wholesale breach
of constitutional right to speedy trial.
9. In a recent pronouncement in the case of Mohd. Muslim @ Hussain
6 (1994) 6 SCC 731
SSP 5/10
22 ba 3676 of 2023.doc
V/s. State (NCT of Delhi)7 the Supreme Court again reiterated the importance of the
expeditious completion of the trial where there are restrictions on the grant of bail, as
under :
"13. When provisions of law curtail the right of an accused to secure bail, and
correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in
the present case), this court has upheld them for conflating two competing
values, i.e., the right of the accused to enjoy freedom, based on the
presumption of innocence, and societal interest - as observed in Vaman
Narain Ghiya V. State of Rajasthan8 ("the concept of bail emerges from the
conflict between the police power to restrict liberty of a man who is alleged to
have committed a crime, and presumption of innocence in favour of the
alleged criminal...."). They are, at the same time, upheld on the condition
that the trial is concluded expeditiously. The Constitution Bench in Kartar
Singh V/s. State of Pujab9 made observations to this effect. In Shaheen
Welfare Association (supra), again, this court expressed the same sentiment,
namely that when stringent provisions are enacted, curtailing the provisions
of bail, and restricting judicial discretion, it is on the basis that investigation
and trials would be concluded swiftly.
............
15. Even in the judgment reported as Vijay Madanlal Chaudhary V/s. Union
of India10, this court while considering bail conditions under the Prevention of
Money Laundering Act, 2002, held that:
"If the Parliament/Legislature provides for stringent provision of no bail,
unless the stringent conditions are fulfilled, it is the bounden duty of the State to
ensure that such trials get precedence and are concluded within a reasonable time, at
least before the accused undergoes detention for a period extending up to one-half of
the maximum period of imprisonment specified for the concerned offence by law."
7 2023 SCC online SC 352
8 (2009) 2 SCC 281
9 (1994) 3 SCC 569
10 2022 SCC Online SC 929
SSP 6/10
22 ba 3676 of 2023.doc
16. In the most recent decision, Satender Kumar Antil V/s. Central Bureau
of Investigation11 prolonged incarceration and inordinate delay engaged the
attention of the court, which considered the correct approach towards bail,
with respect to several enactments, including Section 37 NDPS Act. The
court expressed the opinion that Section 436A17 (which requires inter alia the
accused to be enlarged on bail if the trial is not concluded within specified
periods) of the Criminal Procedure Code, 1973 would apply :
"We do not wish to deal with individual enactments as each special
Act has got an objective behind it, followed by the rigour imposed. The general
principle governing delay would apply to these categories also. To make it clear, the
provision contained in Section 436-A of the Code would apply to the Special Acts
also in the absence of any specific provision. For example, the rigour as provided
under Section 37 of the NDPS Act would not come in the way in such a case as we
are dealing with the liberty of a person. We do feel that more the rigour, the quicker
the adjudication ought to be. After all, in these types of cases number of witnesses
would be very less and there may not be any justification for prolonging the trial.
Perhaps there is a need to comply with the directions of this Court to expedite the
process and also a stricter compliance of Section 309 of the Code."
10. In another recent pronouncement, in the case of Rabi Prakash V/s.
State of Odisha12 the Supreme Court observed as under :
"4. As regard to the twin conditions contained in Section 37 of the
NDPS Act, learned Counsel for the Respondent - State has been duly
heard. Thus, the 1st condition stands complied with. So far as the 2 nd
condition re: formation of opinion as to whether there are reasonable
grounds to believe that the petitioner is not guilty, the same may not be
formed at this stage when he has already spent more than three and a half
years in custody. The prolonged incarceration, generally militates against
11 (2022) 10 SCC 51
12 2023 SCC Online SC 1109
SSP 7/10
22 ba 3676 of 2023.doc
the most precious fundamental right guaranteed under Article 21 of the
Constitution and in such a situation, the conditional liberty must override
the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act."
11. Learned APP submitted that what weighed with the Court in releasing
the co-accused Sudha Tiwari on bail was the fact that the said co-accused was a
woman, with five years child to take care of.
12. Indeed that factor was considered by this Court. However, the primary
fact which weighed with the Court was the long period of incarceration. It is
imperative to note that despite direction to expedite the trial, the trial could not be
completed. This is not to reflect upon the Special Court. The large pendency of the
cases before the Special Court makes it realistically impossible to accede to the
submission of the learned APP to again direct the Special Court to expeditiously
conclude the trial.
13. In the circumstances of the case, I do not find any qualitative difference
in the claim of the applicant for release on bail on the ground of prolonged
incarceration from that of the co-accused, who has been released on bail on that
ground. I am, therefore, impelled to exercise the discretion in favour of the applicant
and release him on bail.
14. Hence, the following order :
ORDER
22 ba 3676 of 2023.doc
(i) The Application stands allowed.
(ii) The Applicant - Girishkumar Swaminath Verma be released on bail in
C.R.No.98 of 2019 registered with Khar Police Station on furnishing a PR bond in the
sum of Rs.30,000/- and one or two sureties in the like amount to the satisfaction of the
Special Court.
(iii) The applicant shall mark his presence before Khar Police Station on first
Monday of every month in between 11 am to 1 pm for a period of three years or till the
conclusion of the trial.
(iv) The applicant shall not tamper with the prosecution evidence. The
applicant 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
the facts to Court or any police officer.
(v) On being released on bail, the applicant shall furnish his contact number
and residential address to the investigating officer and shall keep him updated, in case
there is any change.
(vi) The applicant shall regularly attend the proceedings before the
jurisdictional Court.
(vii) By way of abundant caution, it is clarified that the observations made
hereinabove are confined for the purpose of determination of the entitlement for bail
and they may not be construed as an expression of opinion on the guilt or otherwise of
22 ba 3676 of 2023.doc
the applicant and the trial Court shall not be influenced by any of the observations
made hereinabove.
Application disposed.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 24/01/2024 09:42:39
