Ev Raj vs State Of Himachal Pradesh
2023 Latest Caselaw 17891 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2651 of 2023 Decided on: 10th November, 2023

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    Ev Raj                                                           .....Petitioner




                                                                                     .

                                                  Versus





    State of Himachal Pradesh                                     .....Respondent

------------------------------------------------------------------------------------- Coram

Ms. Justice Jyotsna Rewal Dua

Whether approved for reporting? 1

------------------------------------------------------------------------------------- For the Petitioner: Mr. Sunil Kumar Banyal, Advocate.

For the Respondent:

r Mr. Pranay Pratap Singh, Additional

Advocate General with Mr. Sidharth Jalta, Deputy Advocate General.

SI Munshi Ram, Police Station Padhar, District Mandi, H.P., present

in person alongwith record.

------------------------------------------------------------------------------------- Jyotsna Rewal Dua, Judge

Petitioner is accused of selling 1.998 Kg of

cannabis to Rakesh Kumar and Deepak Kumar and

accordingly FIR No.25/2020 has been registered against

him and the other two persons on 17.02.2020 under

Sections 20 and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short 'NDPS Act') at Police Station

Padhar, District Mandi. By way of the instant petition

Whether reporters of print and electronic media may be allowed to see the order? Yes.

preferred under Section 439 of the Code of Criminal

Procedure, regular bail has been sought by the petitioner.

2. Heard learned counsel for the parties and gone

through the status report.

.

3. The gist of the case against the petitioner is:-

3(i). On 17.02.2020, a Police Party while on routine

patrolling and traffic duty at about 12:15 pm at Khaani

Nala, District Mandi, stopped a bus bearing No.HP 68A-

0686 coming from Manali and going towards Kangra.

    Passengers    occupying
                     r          seat       Nos.18     and      19     appeared

perplexed raising the suspicion of the police personnel. On

inquiry, these two passengers gave their identities as

Rakesh Kumar (Seat No.18) and Deepak Kumar (Seat

No.19), both belonging to State of Punjab. Search of their

luggage was carried out in accordance with law. From a bag

belonging to Deepak Kumar, 1.998 Kg of cannabis was

recovered, which led to registration of the FIR in question.

The above mentioned two persons were arrested on

17.02.2020.

3(ii). During investigations, Deepak Kumar is stated

to have disclosed about procuring the contraband in

question, from a person known to him as 'Guru', on

17.02.2020 in a parking place in Mandi. For purchase of

this contraband, he had allegedly made cash payment of

Rs.1,10,000/- to 'Guru'. Statedly after obtaining the

contraband, he came to bus stand and met his companion

Rakesh Kumar. After deliberations, both of them boarded

.

'New Prem Bus Service' and started from Mandi alongwith

their luggage, from which the contraband in question was

eventually recovered by the police on 17.02.2020.

3(iii). According to the status report, Deepak Kumar

further disclosed that for procuring the cannabis from the

bail petitioner, he remained in constant touch with the

petitioner on latter's mobile numbers, viz. 85807-27703

and 70186-91211. The investigating agency is stated to

have obtained the CDR details of the aforesaid mobile

numbers for proceeding further in the matter. The

photograph affixed on CAF provided with CDR details of one

of the mobile number was stated to be belonging to Ev Raj

@ Evu S/o Pritam Chand, i.e. bail petitioner. Efforts were

made to trace his whereabouts, but he was not found.

Finally on 21.07.2020, the investigating agency was able to

apprehend Ev Raj @ Evu at Gurahan while he was going

from Thalot to Murah Balichowki. Investigations were

carried out from him as well. Petitioner statedly disclosed

that he used to prepare the cannabis for the purpose of

selling to various customers. He met Rakesh Kumar and

Deepak Kumar during 2019 Dussehra Festival and had

given his name as 'Guru' to the other two accused persons.

On 05.02.2020, Deepak Kumar had called the petitioner on

Mobile No.70186-91211 from his (Deepak Kumar's) Mobile

.

No.82647-75437, demanding two kilograms of cannabis.

For this purpose, they thereafter remained in constant

contact with each other on phone. On 16.02.2020, the

petitioner asked Deepak Kumar to meet him in Kullu Bus

Stand alongwith the requisite money. Deepak Kumar

accordingly met the bail petitioner on 16.02.2020 at Kullu

Bus Stand and handed him the demanded amount. On

receipt of the amount, petitioner assured him that two

kilogram of cannabis will reach him near Mandi Bus Stand

on 17.02.2020. On 17.02.2020, Deepak Kumar received a

call from the petitioner from Mobile No.85807-27703 (sim

card of which is statedly registered in the name of

petitioner's wife), directing him to come to Taxi Stand at

Mandi. The cannabis in question was finally delivered by

the petitioner to Deepak Kumar at Taxi Stand, Mandi.

Petitioner became aware of the arrest of Deepak Kumar and

Rakesh Kumar on 18.02.2020 and therefore, apprehending

his own arrest, switched off his mobile phone. He was

finally traced and arrested on 21.07.2020. The challan in

the instant case has been presented before the learned

Sessions Judge, Mandi on 11.08.2020.

4. Learned counsel for the petitioner argued that

the contraband in question was not recovered from the

.

conscious possession of the bail petitioner, rather it was

recovered from the possession of accused Deepak Kumar

and Rakesh Kumar. Petitioner has no role to play in the

alleged possession and recovery of the contraband. He

further submitted that there is no evidence regarding the

petitioner's involvement with the alleged recovery of the

contraband. Learned counsel submitted that co-accused

Rakesh Kumar has been enlarged on bail vide order dated

11.05.2022 passed in Cr.MP(M) No.548 of 2022 and co-

accused Deepak Kumar has also been enlarged on bail vide

order dated 22.09.2023 passed in Cr.MP(M) No.2236 of

2023. It was also emphasized that there has been

considerable delay in the trial. The prosecution has not

been able to conclude its evidence. The petitioner, who is

behind the bars for the last more than three years, is

entitled to bail on account of delay in trial.

Per contra, learned Deputy Advocate General

argued that there is enough evidence to reflect the

involvement of the petitioner with the recovery of huge

quantity of the contraband in question. Therefore,

considering the provisions of Section 37 of the NDPS Act,

petitioner does not deserve to be enlarged on bail. It was

also submitted that the prosecution has adduced seven

witnesses in the trial so far and statements of 11 witnesses

.

still remain to be recorded. In the event of petitioner being

enlarged on bail, there is possibility of his tampering the

prosecution evidence and intimidating its witnesses.

5. Observations:-

5(i). As per the status report, the cannabis weighing

about 1 kg and 998 grams was recovered from the

possession of co-accused Rakesh Kumar and Deepak

Kumar. Considering the commercial quantity of cannabis

involved in the case, rigors of Section 37 of the NDPS Act

are attracted. Section 37 reads as under:-

"37. Offences to be cognizable and non-bailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences

under section 19 of section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to

oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-

section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

In order to make out a case for release on bail,

petitioner has to satisfy the following twin conditions

imposed in the aforesaid section:-

(i) Court should be satisfied that there are

.

reasonable grounds for believing that the petitioner is not guilty of such offence; and

(ii) Petitioner is not likely to commit any offence

while on bail.

In this regard, Hon'ble Apex Court in AIR 2020

SC 721, State of Kerala Etc. Versus Rajesh Etc., held as

under vide paras 19 to 21:-

"19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused

involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under: "7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits

murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly

impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing

in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand

Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:

24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and

booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail

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during trial unless the mandatory conditions provided

in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail

are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent- accused on bail. Instead of attempting to take a holistic view of the harmful socioeconomic consequences and

health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

20. The scheme of Section 37 reveals that the exercise of power to

grant bail is not only subject to the limitations contained

under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non- obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin

conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not

satisfied, the ban for granting bail operates."

In para 21 of the aforesaid judgment, it was held

that the expression "reasonable grounds" appearing in

Section 37 of the NDPS Act means something more than

prima facie grounds. It contemplates substantial probable

causes for believing that the accused is not guilty of the

alleged offence. The reasonable belief contemplated in the

provision requires existence of such facts and

circumstances as are sufficient in themselves to justify

satisfaction that the accused is not guilty of the alleged

offence.

With respect to "reasonable ground to believe

.

that the person is not guilty of offence", following was

observed by the Hon'ble Apex Court in Union of India

through Narcotics Control Bureau, Lucknow vs. MD.

Nawaz Khan, (2021) 10 SCC 100:-

"22. The standard prescribed for the grant of bail is 'reasonable ground to believe' that the person is not guilty of the offence. Interpreting the standard of 'reasonable grounds to believe', a two-judge Bench of this Court in Shiv Shanker Kesari (supra), held that: "7.

r The expression used in Section 37(1)(b)(ii) is

"reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts

and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

8. The word "reasonable" has in law the prima

facie meaning of reasonable in regard to those circumstances of which the actor, called on to act

reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable". "7. ... In Stroud's Judicial Dictionary, 4th Edn., p. 2258

states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy." (See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar [(1987) 4 SCC 497] (SCC p. 504, para 7) and Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. [(1989) 1 SCC 532]

xxx xxx xxx

10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6

.

SCC 315]

11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the

question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not

to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of r not guilty." (emphasis supplied)

5(ii). Present is a case of recovery of 1.998 kilogram of

cannabis from the possession of co-accused Rakesh Kumar

and Deepak Kumar. The charge against the petitioner is

under Section 29 of the NDPS Act. Petitioner was arrested

on 21.07.2020. He has by now completed about three years

and four months in custody. The respondent has not

indicated any previous criminal history of the petitioner in

the status report.

5(iii). AIR 2023 SC 1648 (Mohd Muslim @ Hussain

Vs. State (NCT of Delhi) was decided on 28.03.2023.

Petitioner therein facing charge under Section 29 of the Act

and suffering incarceration for over seven years, was

granted bail on account of delay in trial. Hon'ble Court,

inter-alia, reiterated that when stringent provisions are

enacted, curtailing the provisions of bail and restraining

judicial discretion, it is on the basis that investigation and

trials would be concluded swiftly. Pronouncements in

.

(2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and

(2022) 6 SLR 382 (Vijay Madan Lal Chaudhary Vs

Union of India) were also observed, wherein it was

concluded that statutory restrictions like "section 43-D(5) of

UAPA cannot fetter a constitutional Court's ability to grant

bail on ground of violation of fundamental right" ..... "If the

Parliament 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 and half of the maximum period of imprisonment

specified for the concerned offence by law. (2022) 10 SCC

51 (Satender Kumar Antil Vs. CBI) was also considered,

where prolonged incarceration and inordinate delay

engaged the attention of Court vis-à-vis several enactments

including Section 37 of NDPS Act. In Mohd. Muslim's case

(supra), it was held as under with reference to expression

"not guilty of such offence":-

"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within

.

a very narrow margin. Given the mandate of the general

law on bails (Sections 436, 437 and 439, Cr.PC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the

additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the

ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence.

These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court

assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On

the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This

court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws -

be balanced against the public interest.

19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the

accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused

of offences such as those enacted under Section 37 of the NDPS Act.

20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are

.

expected to record, i.e., that the accused may not be

guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on

ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in

the facts of this case, the appellant deserves to be enlarged on bail."

5(iv). While deciding Special Leave to Appeal (Crl.)

No(s).4169/2023 vide judgment dated 13.07.2023 (Rabi

Prakash Vs. The State of Odisha), the Hon'ble Apex

Court held that prolonged incarceration, generally militates

against 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.

5(v). The FIR in question was registered on

17.02.2020. The trial has still not been concluded. In terms

of the status report, the prosecution has only examined

seven of its witnesses. Eleven prosecution witnesses still

remain to be examined. In terms of the status report, the

statement of first prosecution witness was recorded on

06.12.2021. We are now in the fag end of the year 2023. It

is quite evident that at this pace, trial will take a long time

to conclude. Pace of the trial is very slow. Co-accused

.

persons-Rakesh Kumar and Deepak Kumar have already

been enlarged on bail. Taking into consideration the facts

and circumstances of the case in the backdrop of the law

laid down in the cases of Mohd Muslim and Rabi Prakash,

supra and the period spent by the petitioner in custody

coupled with the fact that trial of the case will take long

time to conclude, the petitioner, at this stage, has made out

a case for his enlargement on regular bail. Status report

does not indicate any previous criminal history of the

petitioner, therefore, it can be reasonably believed that the

petitioner will not indulge himself in similar offence in

future.

In view of all the aforesaid reasons, the present

petition is allowed. The petitioner is ordered to be released

on bail in the aforesaid FIR on his furnishing personal bond

in the sum of Rs.1,00,000/- with one local surety in the like

amount to the satisfaction of the learned Trial Court having

jurisdiction over the concerned Police Station, subject to the

following conditions:-

(i). Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner

.

whatsoever.

(iii). Petitioner will not leave India without prior permission of the Court.

(iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her

from disclosing such facts to the Court or any Police Officer.

(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer

of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two

weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

(vii). It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR

under NDPS Act, then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.

This shall also be considered as a negative factor for consideration of his future bail application, if any.

In case of violation of any of the terms &

conditions of the bail, respondent-State shall be at liberty to

move appropriate application for cancellation of the bail. It

is made clear that observations made above are only for the

purpose of adjudication of instant bail petition and shall

not be construed as an opinion on the merits of the matter.

Learned Trial Court shall decide the matter without being

.

influenced by any of the observations made hereinabove.

With the aforesaid observations, the present

petition stands disposed of, so also the pending

miscellaneous application(s), if any.

    November 10, 2023
          Mukesh
                               to               Jyotsna Rewal Dua
                                                      Judge