Karam Singh vs State Of H.P
2023 Latest Caselaw 16019 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.2153/2023 Decided on: 11.10.2023

.

    Karam Singh                                  ......Petitioner





                              Versus
    State of H.P.                                 ......Respondent

..........................................................................................

Coram Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?1 For the petitioner : Mr. N.K. Thakur, Sr. Advocate with Mr. Divya Raj Singh, Advocate.

For the respondent :

                           r              to  Mr. Pranay Pratap Singh, Additional
                                              Advocate General with Mr. Arsh
                                              Rattan & Mr. Sidharth Jalta,
                                              Deputy Advocates General.

                                              ASI Vinod Kumar, present in
                                              person.

    Jyotsna Rewal Dua, J

The petitioner seeks regular bail in FIR No. 348/2019,

dated 19.12.2019, registered under Section 20 of the Narcotics Drugs

and Psychotropic Substances Act (in short 'NDPS Act') at Police

Station, Sadar Chamba, District Chamba, H.P. The petitioner is

accused of possessing 8.212 kgs of cannabis in the said FIR.

2. Respondent has filed the status report and also

produced the record.

3. According to the respondent, on 19.12.2019, a police

party was on routine patrol duty within the area of its jurisdiction; At

around 3.25 P.M., the police personnel noticed a pedestrian carrying a

Whether reporters of the local papers may be allowed to see the judgment? yes

backpack; He seemingly appeared perplexed; On seeing the police

party, he retraced his steps & started going backwards at fast pace;

.

Getting suspicious, the police personnel nabbed him; Independent

witnesses were associated; Search of the backpack held by that

person (bail petitioner) was carried out as per law; The search

resulted in recovery of 8.212 kgs of cannabis; Consequently, the FIR

in question was registered and the petitioner was arrested on

19.12.2019. On completion of investigation, a police report under

Section 173 of the Criminal Procedure Code was presented on

18.03.2020.

4. Learned Senior Counsel for the petitioner submitted that

the story propounded by the prosecution does not inspire confidence.

Independent witnesses associated by the investigating agency &

examined during trial, have not supported the prosecution case. It was

further highlighted that the petitioner has already spent about 3 years

and 10 months in custody. The prosecution has still not been able to

lead its entire evidence. The trial is delayed. Therefore, on this ground

alone, the petitioner deserves to be enlarged on bail.

Learned Additional Advocate General opposed the grant

of bail and submitted that the petitioner is accused of possessing

8.212 kgs of cannabis. Being a case of recovery of commercial

quantity of the contraband, provisions of Section 37 of the NDPS Act

are attracted. The petitioner has not been able to satisfy the

conditions imposed therein, therefore, he is not entitled to bail. It was

further submitted that the instant is not a case of delay in trial.

.

Prosecution has been leading its evidence. As of now, the prosecution

has examined 14 witnesses; 2 witnesses have been given up; Only 6

witnesses remain to be examined. Since the Trial is nearing

completion, therefore, the petitioner does not deserve to be enlarged

on bail.

5. Observations:-

5(i). Since quantity of the contraband recovered in the FIR is

commercial, therefore, Section 37 of the NDPS Act comes into play.

In order to avail bail, the petitioner has to satisfy

following twin conditions imposed in Section 37 of the NDPS Act:-

"(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."

5(ii) Hon'ble Apex Court in (2020) 12 SCC 122, titled State

of Kerala and others Versus Rajesh and others, after considering

various pronouncements held that the expression 'reasonable

grounds' used 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 alleged offence.

It would be appropriate to extract relevant paras from the judgment:-

"19. 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 Cr.PC, 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.

20. The expression "reasonable grounds" 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 6not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the

Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the

NDPS Act is indeed uncalled for."

5(iii) Present is a case of recovery of 8.212 kgs of cannabis

from the petitioner. The quantity recovered from the petitioner is not

just commercial but is quite huge at that, however, the fact remains

that the petitioner was arrested on 19.12.2019. He has by now

completed 2 months short of 4 years in custody. The respondent has

not indicated any previous criminal history of the petitioner in the

status report.

5(iv) 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 18 As per the counteraffidavit dated 21.02.2023 filed by the respondent-state before this court. 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(v) 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(vi) The FIR in question was registered on 19.12.2019 and

the trial has still not been concluded. Vide order dated 06.09.2023,

the respondent was directed to file an affidavit detailing therein the

witnesses examined by the prosecution as on date, the dates of their

.

examination and the reason as to why till date, the prosecution had

not been able to conclude the trial. In the affidavit filed by the

Superintendent of Police, Chamba, District Chamba, the prime

reason for delaying the trial was put on Covid-19 pandemic. Some of

the zimni orders placed on record prima-facie give impression that

the prosecution witnesses were though served at times but did not

remain present in the Court, rather applications were moved for

exempting them from appearing in the Court. According to the status

report and as submitted by learned Additional Advocate General, the

prosecution even now has to examine 6 more witnesses. Considering

the fact that FIR in question pertains to the year 2019 and also the

fact that the final report was presented as far back as on 18.03.2020,

the pace of the trial is apparently very slow. At this pace, the trial will

still take long time to conclude. Learned counsel for the petitioner has

also highlighted that the independent witnesses did not support the

prosecution case. Taking into consideration the facts and

circumstances of the case in the backdrop of law laid down in

Mohammad Muslim's and Rabi Prakash's cases, 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.

Petitioner is in custody ever since 19.12.2019 & has completed

almost three years & ten months as an under trial prisoner. 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. 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/- (Rupees One Lakh only) with one local surety in the

like amount to the satisfaction of the learned Trial Court having

jurisdiction over the Police Station concerned, 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. He shall fully cooperate the

Investigating Officer and will appear before him in the concerned police station as and when called 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 his 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. Any observation hereinabove shall not be taken

as an expression on merits of the case and learned Trial Court shall

decide the matter uninfluenced by any of observations made

hereinabove.

With the aforesaid observations, the present petition

stands disposed of, so also the pending miscellaneous applications,

.

if any.

                                           Jyotsna Rewal Dua





                                                Judge
    11th October 2023(Rohit)




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