Himachal Pradesh High Court
Chet Ram vs State Of Himachal Pradesh on 23 December, 2022
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2570 of 2022
Decided on : 23.12.2022
.
Chet Ram ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
For the petitioner
r to
Whether approved for reporting? 1
:Mr. Yashveer Singh Rathore, Advocate.
For the respondent :Mr. Desh Raj Thakur, Additional
Advocate General with Mr. Narender
Thakur, Deputy Advocate General.
Satyen Vaidya, Judge
Petitioner is an accused in case FIR No.
267/2019, dated 20.11.2019, registered under
Section 20 of Narcotic Drugs and Psychotropic
Substances, Act (for short 'ND&PS' Act), at Police
Station Bhuntar, District Kullu, H.P. Petitioner is
in custody since 20.11.2019.
1 Whether reporters of the local papers may be allowed to see the judgment?
2. Petitioner is facing trial for offences
under Section 20 of ND&PS Act in pursuance to
challan filed by respondent. The allegation against
.
petitioner is that on 20.11.2019, at about 8:15 am
near Gram Panchayat Gara Parli, he was found
carrying a bag in his right hand, from which 5.679
Kgs of 'Charas' was recovered.
3.
Petitioner has now prayed for grant of
bail on the ground that his constitutional right of
expeditious disposal of trial has been infringed. As
per petitioner, he is in custody more than three
years now and the trial has not concluded, rather,
it is progressing at snails pace.
4. In its status report dated 07.12.2022,
respondent has submitted that PW-1 and PW-2
have now been summoned for 04.03.2023 for
examination before learned Special Judge.
5. Learned Additional Advocate General has
opposed the prayer of the petitioner, on the ground
that Section 37 of ND&PS Act, has application in
the facts of the case and merely, on the ground of
delay in conclusion of trial, petitioner cannot be
released on bail.
6. I have heard learned counsel for the
.
petitioner as well as learned Additional Advocate
General and have also gone through the status
report.
7. The fetters placed by Section 37 of
r to
ND&PS Act, evidently have been instrumental in
denial of right of bail to the petitioner in the
instant case till date. The question that arises for
consideration is, can the provisions of Section 37
of the Act, be construed to have same efficacy,
throughout the pendency of trial, notwithstanding,
the period of custody of the accused, especially,
when it is weighed against his fundamental right
to have expeditious disposal of trial?
8. It is submitted by learned counsel for
the petitioner that till date only eight witnesses
have been examined and ten more witnesses
remain to be examined, despite the fact that
petitioner is in custody since 20.11.2019. In the
considered view of this Court, the Constitutional
guarantee of expeditious trial cannot be diluted
by applying the rigors of Section 37 of ND&PS Act
.
in perpetuity.
9. Recently, in a number of cases,
under-trials for offences involving commercial
quantity of contraband under ND&PS Act have
been allowed
the liberty of bail
Supreme Court only on the ground that they have
been incarcerated for prolonged durations.
by Hon'ble
10. In Mahmood Kurdeya Vs. Narcotic
Control Bureau (2022) 3 RCR (Criminal) 906, Hon'ble
Supreme Court has held as under:-
"6.What persuades us to pass an order in favour of
the appellant is the fact that despite the rigors
of Section 37 of the said Act, in the present case
though charge sheet was filed on 23.09.2018 even
the charges have not been framed nor trial has
commenced."
11. In Nitish Adhikary @ Bapan Vs.The
State of West Bengal (Special Leave to Appeal
(Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022,
Hon'ble Supreme Court has held as under:-
"During the course of the hearing, we are informed
that the petitioner has undergone custody for a
period of 01 year and 07 months as on
09.06.2022. The trial is at a preliminary stage, as
.
only one witness has been examined. The
petitioner does not have any criminal antecedents.
Taking into consideration the period of sentence
undergone by the petitioner and all the attending
circumstances but without expressing any views
in the merits of the case, we are inclined to grant
bail to the petitioner."
12. In Gopal
Krishna Patra @ Gopalrusma
Vs. Union of India (Cr. Appeal No. 1169 of 2022),
decided on 05.08.2022,Hon'ble Supreme Court has
held as under:-
" The appellant is in custody since 18.06.2020 in
connection with crime registered as NCB Crime No.
02/2020 in respect of offences punishable under
Sections 8,20,27-AA, 28 read with 29 of the
Narcotic Drugs and Psychotropic Substances Act,
The application seeking relief of bail having been
rejected, the instant appeal has been filed.
We have heard Mr. Ashok Kumar Panda, learned
Senior Advocate in support of the appeal and Mr.
Sanjay Jain, learned Additional Solicitor General
for the respondent.
Considering the fact and circumstances on record
and the length of custody undergone by the
appellant, in our view the case for bail is made
out."
13. In Chitta Biswas @ Subhas Vs. The
State of West Bengal, (Criminal Appeal No.(s) 245
of 2020, decided on 07.02.2020, it has been held as
.
under:-
"The appellant was arrested on 21.07.2018 and
continues to be custody. It appears that out of 10
witnesses cited to be examined in support of the
case of prosecution four witnesses have already
been examined in the trial.
Without expressing any opinion on the merits or
demerits of the rival submissions and considering
the facts and circumstances on record, in our
view, case for bail is made out."
In Abdul Majeed Lone Union
14. Vs.
Territory of Jammu and Kashmir( Special Leave
to Appeal (Cr.L.) No. 3961 of 2022, decided on
01.08.2022, it has been held as under:-
"Having regard to the fact that the petitioner is
reported to be in jail since 1-3-2020 and has
months and there being no likelihood of completion
of trial in the near future, which fact cannot be
controverted by the learned counsel appearing for
the UT, we are inclined to enlarge the petitioner on
bail.".
15. In addition, different Co-ordinate
Benches of this Court have also followed precedent
to grant bail to the accused in ND&PS Act, on the
ground of prolonged pre-trial incarceration.
Reference can be made to order dated 28.07.2022,
passed in Cr.MP(M) No. 1255 of 2022, order dated
.
01.12.2022, passed in Cr.MP(M) No. 2271 of 2022
and order dated 04.11.2022, passed in Cr.MP(M)
No. 2273 of 2022.
16. Reverting to the facts of the case, the
petitioner is in custody since 20.11.2019 and the
facts suggest that the trial is not likely to be
concluded in near future. There is nothing on
record to suggest that the delay in trial is
attributable to the petitioner.
17. Keeping in view the facts of the case and
also the above noted precedents, the bail petition is
allowed and petitioner is ordered to be released on
bail in case FIR No. 267/2019, dated 20.11.2019,
registered under Section 20 of ND&PS, Act, at
Police Station Bhuntar, District Kullu, H.P., on his
furnishing personal bond in the sum of Rs.
1,00,000/- with one surety in the like amount to
the satisfaction of learned trial court. This order
shall, however, be subject to the following
conditions:-
.
i) Petitioner shall regularly attend the trial of
the case before learned Trial Court and shall
not cause any delay in its conclusion.
ii) Petitioner shall not tamper with the
prosecution evidence, in any manner,
whatsoever and shall not dissuade any
person from speaking the truth in relation to
the facts of the case in hand.
iii) Petitioner shall be liable for immediate
arrest in the instant case in the
event of petitioner violating the
conditions of this bail.
(iv) Petitioner shall not leave India without
permission of learned trial Court till
completion of trial.
18. Any expression of opinion herein-above
shall have no bearing on the merits of the case
and shall be deemed only for the purpose of
disposal of this petition.
(Satyen Vaidya)
23rd December 2022 Judge
(sushma)
