Decided On : 15.09.2023 vs State Of Himachal Pradesh
2023 Latest Caselaw 13746 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.: 2289 of 2023

.

                                         Reserved on : 11.09.2023





                                         Decided on          : 15.09.2023
     Anish Kumar                                                 ....Petitioner.





                                         Versus

     State of Himachal Pradesh                                   ...Respondent.

     Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1 No

For the petitioner : Mr. Udit Shaurya Kaushik, Advocate.

For the respondent : Mr. Pushpender Jaswal, Additional Advocate

General.

Satyen Vaidya, Judge

Petitioner is an accused in case FIR No.

8 of 2022, dated 08.01.2022, registered under

Sections 20 and 29 of Narcotic Drugs and

Psychotropic Substances, Act (for short 'ND&PS'

Act), at Police Station Joginder Nagar, District

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

Mandi, H.P. Petitioner is in custody since

08.01.2022.

.

2. Petitioner is facing trial for offences

under Sections 20 and 29 of ND&PS Act in

pursuance to challan filed by respondent. The case

of the prosecution is that on 08.01.2022, at about

7:30 pm, at place near Lower Harabag, one motor

ridden by r Manish to cycle came from the side of Galu, which was being

Kumar and the present

petitioner was the pillion rider. During

investigation, the police officials found that there

was a black-blue colored "Pithu" bag in between

Motor Cycle rider and the pillion rider. Suspicion

was entertained and thereafter, police authorities

associated Sh. Jagjeeven Singh, who was an owner

of 'Himanshu Chicken Corner' at place Lower

Harabag and Sh. Dinesh Kumar, who runs a shop

called 'Prince Tea Stall' near Liquor vend at place

lower Harabag as independent witnesses. In the

presence of said witnesses, police opened the

abovementioned bag, in which a transparent

polythene packet containing black colour substance

was found. The said substance on smelling was

.

found to be 'Charas'. On weighing the said 'Charas'

was found to be 1.529 Kgs.

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 for one year and

eight months and the trial has not concluded,

rather, it is progressing at snail's pace.

4. As per petitioner, out of eighteen cited

witnesses, prosecution has examined only six

witnesses till date and twelve more witnesses

remain to be examined.

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

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 provision 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. As is suggested by the contents of

status report, recording of prosecution evidence is

still in progress despite the fact that petitioner is

in custody since 08.01.2022. 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 by Hon'ble

Supreme Court only on the ground that they have

10. In r Mahmoodto been incarcerated for prolonged durations.

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, 1098.

The application seeking relief of bail having been

rejected, the instant appeal has been fled.

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 submission and considering the facts and circumstances on record, in our view, case for bail is made out."

14. In Abdul Majeed Lone Vs. Union

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. In Criminal Appeal No. 943 of 2023

titled as Mohd Muslim @ Hussain Vs. State (NCT

of Delhi), Hon'ble Supreme Court, vide its

r to judgment dated 28.03.2023, has held as under:-

"21. Before parting, it would be important to

reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not

concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more

often than not, appalling. According to the Union Home Ministry's response to Parliament,

the National Crime Records Bureau had recorded that as on 31 st December 2021, over

5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A

Convict Prisoner v. State21 as"a radical transformation" whereby the prisoner:

.

"loses his identity. He is known by a

number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of

freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary

standards. Self-perception changes."

23. There is a further danger of the prisoner

turning to crime, "as crime not only turns

admirable, but the more professional the crime, more honour is paid to the criminal"22 (also see Donald Clemmer's 'The Prison Community' 20

National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/ PSI- 2021/Executive_ncrb_Summary-2021.pdf 21

1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in

194023). Incarceration has further deleterious effects - where the accused belongs to the

weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent

provisions, are taken up and concluded speedily."

.

17. Recently in Special Leave to Appeal

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

Vs. The State of Odisha, Hon'ble Supreme Court,

vide its judgment dated 13.07.2023, has held as

under:-

"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the

1st condition stands complied with. So far as the 2nd

condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this

stage when he has already spent more than three and a half years in custody. The 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."

18. Reverting to the facts of the case, the

petitioner is in custody since 08.01.2022 and the

facts suggest that the trial is not likely to be

concluded in near future. There is nothing on

record to suggest that delay in trial is attributable

to the petitioner.

.

19. 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. 8 of 2022, dated 08.01.2022,

registered under Sections 20 and 29 of ND&PS

Act, at Police Station Joginder Nagar, District

Mandi, 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.

20. 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)
    15th September, 2023                             Judge
          (sushma)




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