Randhir Singh vs State Of Himachal Pradesh
2023 Latest Caselaw 1908 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                   Cr.M.P. (M) Nos. 2898 of 2022 and 388 of
                                                   2023




                                                                                          .

                                                   Date of decision: 7.3.2023

    1.       Cr.M.P. (M) No. 2898 of 2022





    Randhir Singh.                                                                           ...Petitioner.
                                                  Versus
    State of Himachal Pradesh.                                                              ...Respondent.

    2.       Cr.M.P. (M) No. 388 of 2023

    Manjeet Singh.

    State of Himachal Pradesh.
                                 r                  to
                                                   Versus
                                                                                               ...Petitioner.

                                                                                               ...Respondent.

    Coram
    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.



    Whether approved for reporting?1

    For the Petitioner(s).                    Mr.Rajiv Rai and Mr.Gurdev Negi, Advocates.






    For the Respondent:                      Mr.Manoj           Chauhan,           Additional        Advocate
                                             General.





                        Vivek Singh Thakur, Judge (Oral)

Petitioners have approached this Court, invoking provisions of

Section 439 Code of Criminal Procedure (in short 'Cr.P.C.'), seeking bail in

case FIR No. 3 of 2020, dated 4.1.2020, registered in Police Station Kot

Kehloor, District Bilaspur, H.P., under Section 15 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').

2. Status report stands filed. Record has also been made

available.

3. As per status report, on 3.1.2020, Police Party while patrolling

near border of Himachal Pradesh and State of Punjab, at about 11:30 P.M.

found two Trucks parked on the road, one of which was parked on the

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

and 388 of 2023

middle of the bridge and side door behind the driver seat was also open and

one person was outside the truck, whereas another person was shifting

apple carton to other truck. To ask the reason for parking the vehicle in the

.

middle of the road, Police personnel got down from the vehicle and went

towards the truck. On seeing the Police Party, driver of the truck ran

towards Punjab and two persons shifting the boxes to other truck were

inquired, who disclosed their identity as Manjeet Singh and Hardeep

alongwith their addresses. Both of them were also perplexed and one

person, i.e. Manjeet who was in the truck ran away from the other side of the

door of the truck towards bushes, who could not be apprehended despite

making out all efforts. Hardeep also tried to ran from the spot by throwing

the box which was in his hands, but he was overpowered and apprehended.

Independent witnesses were associated by the Police Party and thereafter

box thrown by Hardeep was checked, wherein Poppy straw/husk was found,

which was identified on the basis of experience and smelling by the Police

Party and witnesses. Other boxes were also unloaded from the truck and

were checked and from these boxes 123.800 Kilogram Poppy Straw/Husk

was found, which was taken in possession and seized by following the

procedure.

4. Rukka was sent to the Police Station, on the basis of which FIR

was registered and Hardeep was arrested. Driver of the truck Randhir

Singh was arrested on 8.1.2020, whereas Manjeet Singh was arrested on

20.1.2020. Challan was prepared and presented in the Court on 3.4.2020.

Petitioners alongwith co-accused after remaining in Police custody were

sent in judicial custody and since then they are in detention.

5. As per status report, in the main challan there are 17 witnesses

and 8 witnesses in supplementary challan and in total there are 27

witnesses, out of which 12 witnesses have been examined and 15

and 388 of 2023

witnesses are yet to be examined and case has been fixed for recording of

evidence of 7 witnesses on 28th and 29th April, 2023.

6. Learned counsel for the petitioners has submitted that petitioner

.

Manjeet was enlarged on bail for 25 days to attend the marriage, whereas

Randhir is continuously in judicial custody and further that even after

excluding period of interim bail, petitioners are behind the bars since more

than 3 years 1 month and despite being an undertrial prisoners, in the trial,

out of 27 witnesses only 12 witness have been examined and now case has

been listed in the last week of April, 2023. It has been further submitted that

there is no role of petitioners in delaying the trial and there is no likelihood of

completion of trial in near future and keeping in the pace of trial, according

to him, petitioners are entitled for bail.

7. Learned counsel for the petitioners, to substantiate plea for bail,

has referred pronouncement of the order dated 01.08.2022 passed by the

Supreme Court in a petition for Special Leave to Appeal (Crl.) No.3961 of

2022, titled as Abdul Majeed Lone vs. Union Territory of Jamu and

Kashmir, wherein petitioner facing trial for having been found in possession

of 1100 grams commercial quantity of charas was enlarged on bail for

suffering incarceration for over 2 years and 5 months, observing that there

was no likelihood of completion of trial in near future; and order dated

12.10.2020, passed by Three Judges' Bench of the Supreme Court, in

Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. State of

Himachal Pradesh, whereby petitioner therein, facing trial for recovery of

3.285 kilograms charas from a vehicle, alongwith four other persons, was

enlarged on bail for having been in detention of 2 years and 7 months, as till

then out of 14 witnesses, 7 witnesses were yet to be examined and last

witness was examined in February 2020 and, thereafter, there was no

further progress in the trial.

and 388 of 2023

8. Learned counsel for the petitioners has referred pronouncement

of the Supreme Court in Nitish Adhikary @ Bapan v. The State of West

Bengal, Special Leave to Appeal (Crl.) No.5769 of 2022, decided on

.

1.8.2022, whereby the accused, under Sections 21(c) and 37 of NDPS Act,

was ordered to be enlarged on bail after detention of 1 year and 7 months,

observing that the trial was at a preliminary stage.

9. Learned counsel for the petitioners has also placed reliance on

order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No.

245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West

Bengal, whereby accused having found in possession of Codeine mixture

above commercial quantity, was enlarged on bail after 1 year 7 months, at

the stage of trial when out of 10 witnesses, 4 witnesses have been

examined in the trial.

10. Reliance has also been placed on order dated 10.11.2021

passed by the Supreme Court in Special Leave to Appeal (Criminal) No.

5187 of 2021, titled as Kulwant Singh Vs. The State of Punjab, whereby

accused after detention of more than 2 years, was enlarged on bail despite

the fact that recovered contraband was of commercial quantity, for prayer to

grant of bail was on the ground of advanced age of petitioner, period of

custody undergone by him and the fact that trial would take time to

conclude.

11. Learned counsel for the petitioners has also placed reliance

upon order dated 7.12.2021 passed by the Supreme Court in Criminal

Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics

Control Bureau, whereby petitioner apprehended with thousands of tablets

of Tramadol X-225, was enlarged on bail. In this case, quantity of drug

recovered was more than 50 Kilograms. However, in this case bail was

granted by taking into consideration the fact that charge-sheet was filed on

23.9.2018 and thereafter even charges had not been framed nor trial had

and 388 of 2023

commenced till grant of bail to the petitioner, whereas manufacturer who

sold the drug to the accused had been granted bail.

12. Learned counsel for petitioners has also relied upon order dated

.

5.8.2022 passed by the Supreme Court in Gopal Krishna Patra @

Gopalrusma vs. Union of India (Cr. Appeal No. 1169 of 2022), wherein

accused in custody since 18.6.2020 was ordered to be enlarged on bail

considering the facts and circumstances on record and length of custody

undergone by him.

13. Learned counsel for petitioners has placed reliance upon

judgment dated 13.1.2023 passed by this Bench in Cr.MP(M) No. 61 of

2023 titled Chet Ram vs. State of Himachal Pradesh wherein an accused

under detention for the last 3 years and 11 months for recovery of 1.900 Kg.

charas has been ordered to be enlarged on bail.

14. Learned counsel for petitioners has placed reliance upon

judgment dated 29.12.2022 passed by Coordinate Bench in Cr.MP(M) No.

2703 of 2022 titled Ram Chand vs. State of Himachal Pradesh wherein

an accused under detention for the last 3 years and 11 months for recovery

of 2 Kg. charas has been ordered to be enlarged on bail.

15. Learned counsel for petitioners has placed reliance upon

judgment dated 22.12.2022 passed by Coordinate Bench in Cr.MP(M) No.

2521 of 2022 titled Prem Chand vs. State of Himachal Pradesh wherein

an accused under detention for the last 3 years and 9 months for recovery of

2.605 Kg. charas has been ordered to be enlarged on bail.

16. Learned counsel for petitioners has placed reliance upon

judgment dated 28.2.2023 passed by Coordinate Bench in Cr.MP(M) No.

349 of 2023 titled Kewal Ram vs. State of Himachal Pradesh wherein an

accused under detention for the last 5 years and 4 months for recovery of

3.045 Kg. charas has been ordered to be enlarged on bail.

and 388 of 2023

17. Learned counsel for petitioners has placed reliance upon

judgment dated 12.12.2022 passed by this Bench in Cr.MP(M) No. 2324 of

2022 titled Rajesh Kumar vs. State of Himachal Pradesh wherein an

.

accused under detention for the last 3 years and 5 months for recovery of

3.125 Kg. charas has been ordered to be enlarged on bail.

18. Learned counsel for petitioners has placed reliance upon

judgment dated 12.1.2023 passed by Coordinate Bench in Cr.MP(M) No. 59

of 2023 titled Joseph Shobal vs. State of Himachal Pradesh and

judgment dated 26.12.2022 passed by Coordinate Bench in Cr.MP(M) No.

2657 of 2022 titled Jeet Ram vs. State of Himachal Pradesh wherein an

accused under detention for the last 3 years and 3-4 months for recovery of

3.382 Kg. charas have been ordered to be enlarged on bail.

19. Learned counsel for petitioners has placed reliance upon

judgment dated 20.2.2023 passed by Coordinate Bench in Cr.MP(M) No.

327 of 2023 titled Surender Singh vs. State of Himachal Pradesh

wherein an accused under detention for the last 2 years and 7 months for

recovery of 4.76 Kg. charas has been ordered to be enlarged on bail.

20. Learned counsel for petitioners has placed reliance upon

judgment dated 23.2.2023 passed by Coordinate Bench in Cr.MP(M) No.

323 of 2023 titled Tivalue @ Shiv Chand vs. State of Himachal Pradesh

wherein an accused has been enlarged on bail who was under detention for

the last 3 years and 4 months for recovery of 5 Kg. charas and out of 11

witnesses only 6 witnesses were examined.

21. Learned counsel for petitioners has placed reliance upon

judgment dated 23.12.2022 passed by Coordinate Bench in Cr.MP(M) No.

2570 of 2022 titled Chet Ram vs. State of Himachal Pradesh; judgment

dated 4.1.2023 passed by Coordinate Bench in Cr.MP(M) No. 2836 of

2022 titled Kaul Ram vs. State of Himachal Pradesh; judgment dated

04.01.2023 passed by Coordinate Bench in Cr.MP(M) No. 2837 of 2022

and 388 of 2023

titled Krishan Chand vs. State of Himachal Pradesh wherein accused

under detention for the last 3 years and 1 month for recovery of 5.679 Kg.

charas have been ordered to be enlarged on bail, observing as under:-

.

"7. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instance 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.

.......

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 Narcotic Drugs and Psychotropic Substances Act, 1985. 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 circumstance on record and the length of custody undergone by the appellant, in our view the case for bail is made out"

.......

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."

and 388 of 2023

22. Referring aforesaid pronouncements, learned counsel for

petitioners has pleaded that petitioners are also entitled for bail on the same

analogy.

.

23. Learned Additional Advocate General has submitted that

petitioners have 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, petitioners are not entitled for

bail.

24. It has been further submitted by learned Additional Advocate

General that petitioners are residents of other State and there is every

possibility of their fleeing from justice and, therefore, also they are not

entitled for bail.

25. Learned counsel for the petitioners submits that petitioners are

ready to abide by any condition imposed by this Court for enlarging them on

bail and they are also ready to furnish local sureties as well as sureties of

their relatives.

26. Taking into consideration the entire facts and circumstances,

but without commenting on merits thereon and taking into account factors

and parameters, as propounded by the Supreme Court and this Court,

required to be considered at the time of adjudication of bail application, I am

of the opinion that petitioners may be enlarged on bail in present case at this

stage.

27. Accordingly, present petitions are allowed and petitioners are

ordered to be enlarged on bail, subject to their furnishing personal bonds

each in the sum of 2,00,000/- with two sureties, each in the like amount,

one of which shall be local and other of relative of petitioners, as

undertaken, to the satisfaction of trial Court/Special Judge within four weeks,

and upon such further conditions as may be deemed fit and proper by the

and 388 of 2023

trial Court, including the conditions enumerated hereinafter, so as to assure

presence of the petitioner at the time of trial:-

(i) That the petitioners shall make themselves available to

.

the Police or any other Investigating Agency or Court in

the present case as and when required;

(ii) that the petitioners 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/her from disclosing such facts to Court or to any police officer or tamper with the evidence. They shall not, in any manner, try to overawe or influence or

intimidate the prosecution witnesses;

(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioners shall not commit the offence similar to

the offence to which they are accused or suspected;

(v) that the petitioners shall not misuse their liberty in any manner;

(vi) that the petitioners shall not jump over the bail;

(vii) that in case petitioners indulge in repetition of similar offence(s) then, their bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioners shall keep on informing about the change in address, landline number and/or mobile

number, if any, for their availability to Police and/or during trial; and

(ix) the petitioners shall not leave India without permission of the Court.

28. It will be open to the prosecution to apply for imposing and/or to

the trial Court to impose any other condition on the petitioners, enlarged on

bail, 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.

29. In case the petitioners violate any conditions imposed upon

them, their bail shall be liable to be cancelled. In such eventuality,

and 388 of 2023

prosecution may approach the competent Court of law for cancellation of

bail, in accordance with law.

30. Learned 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.

31. 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 applications.

32. The parties are permitted to produce copy of order downloaded

from the High Court website and trial Court shall not insist for certified copy

of the order, however, if required, passing of order can be verified from the

High Court website or otherwise.

The petitions stand disposed of in the aforesaid terms.

                                                       (Vivek Singh Thakur),




    7th March, 2023                                             Judge.
          (Keshav)