Varun Bhardwaj vs State Of Himachal Pradesh
2023 Latest Caselaw 16307 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT
                                          SHIMLA
                                                      Cr.MP(M) No.:2226 of 2023
                                                       Decided on: 13.10.2023




                                                                        .
    Varun Bhardwaj                                              ...Petitioner





                                           Versus





    State of Himachal Pradesh                                            ...Respondent

    Coram
    Hon'ble Mr. Justice Ajay Mohan Goel, Judge
    1





     Whether approved for reporting?
    For the petitioner:   Mr. Kulwant Singh Gill, Advocate.

    For the respondent: Mr. Rupinder Singh Thakur, Mr.
                   r    Pushpinder   Jaswal,     Additional
                        Advocate Generals, with Ms. Ranjna

                        Patial, Mr. Sumit Sharma, Deputy
                        Advocate Generals and Mr. Rajat
                        Chauhan, Law Officer.



    Ajay Mohan Goel, Judge (Oral)

By way of this petition filed under Section 439 of the

Code of Criminal Procedure, the petitioner has prayed for grant

of bail in FIR No. 06 of 2020, dated 06.02.2020, registered

under Sections 18 & 20 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 at Police Station State CID, Crime

Bharari, District Shimla, H.P.

2. Learned counsel for the petitioner has submitted

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

that though the allegations of the prosecution are that 384

grams of opium and 1.446 kg of charas was recovered from the

possession of the petitioner, but fact of the matter remains that

.

the petitioner continues to be in custody since the date of his

arrest i.e. 06.02.2020 and as the trial is not proceeding at

desired speed, the petitioner is being made to suffer denying to

him right to fair and speedy trial, which is his fundamental right.

He further submitted that otherwise also, the petitioner is

innocent and not guilty of the offences alleged to have been

committed by him, which is evident from the statements of the

prosecution witnesses recorded till date. Accordingly, he prayed

that the present petition be allowed and the petitioner be

ordered to be released on bail on such terms and conditions as

the Court deems fit.

3. Learned Deputy Advocate General has opposed the

petition inter alia on the ground that the quantity of recovered

contraband is commercial quantity and if released on bail, there

is each and every possibility that the petitioner may try to win

over the remaining witnesses, which may adversely affect the

trial. He also argued that simply because the petitioner is in

custody for more than three and half years, this does not

confers upon him any right to be released on bail because

herein the quantity involved is commercial, therefore, the rigors

.

of Section 37 of the NDPS Act come into play and in the

absence of the recording of any satisfaction by the Court that

the petitioner is not guilty of the offences alleged to have been

committed by him, he cannot be released on bail.

4. I have heard learned counsel for the parties and I

have also gone through the status report as well as the other

record made available for perusal of the Court by the learned

Deputy Advocate General.

5. It is a matter of record that the petitioner is in

custody for more than three and half years as he was arrested

in the present FIR on 06.02.2020. It is also a matter of record

that out of total 19 prosecution witnesses named in the case,

statement of only seven witnesses have been recorded and

now the next date which has been given by the learned Court

below for recording the statements of some of the remaining

prosecution witnesses is 16.12.2023 and 27.12.2023.

6. Hon'ble Supreme Court in Special Leave to Appeal

(Crl.) No(s).4169 of 2023 , titled as Rabi Prakash vs. The State

of Odisha has been pleased to observe in a case under the

provisions of NDPS Act, wherein, the contraband involved was

.

of commercial quantity, that three and half years spent in

custody amounts to prolonged incarceration and this 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.

7. Whether or not the petitioner is guilty of the

offences alleged to have been committed by him, of course, is

a matter of trial but taking into consideration the fact that the

petitioner has been in custody for more than three and half

years, this Court is of the considered view that this prolonged

incarceration, in terms of the law declared by the Hon'ble

Supreme Court of India, referred to hereinabove, militates

against the most precious fundamental right guaranteed under

the Constitution of India i.e. the fundamental right of protection

of life and personal liberty envisaged under Article 21 of the

Constitution of India and the conditional liberty must override

the statutory embargo created under Section 37(1)(b)(ii) of the

NDPS Act.

8. Accordingly, this petition is allowed primarily on the

.

ground that the petitioner has been in custody for more than

three and half years and there is no possibility of the trial being

completed in near future. The petitioner is ordered to be

released on bail in FIR No. 06 of 2020, dated 06.02.2020,

registered under Sections 18 & 20 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 at Police Station State CID,

Crime Bharari, District Shimla, H.P., subject to his furnishing

personal bail in the sum of two lacs with two sureties each in

the like amount to the satisfaction of concerned Chief Judicial

Magistrate/ Additional Chief Judicial Magistrate/Judicial

Magistrate First Class. The petitioner shall also abide by the

following conditions:-

"(a) He shall attend the Trial Court on each and

every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not 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 the Court or the Police Officer; and

(d) He will not leave the territorial jurisdiction of

.

the Trial Court without the leave of the Court."

9. It is clarified that the findings which have been

returned by this Court while deciding this petition are only for

the purpose of adjudication of the present bail application and

learned Trial Court shall not be influenced by any of the findings

so returned by this Court in the adjudication of this petition

during trial of the case. It is further clarified that in case the

petitioner does not comply with the conditions which have been

imposed upon him while granting the present bail, the State

shall be at liberty to approach this Court for the cancellation of

bail. The petition stands disposed in above terms.

(Ajay Mohan Goel) Judge

October 13, 2023 (Rishi)