Decided On : 27.09.2023 vs State Of Himachal Pradesh
2023 Latest Caselaw 14771 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.: 1821 of 2023

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                                         Reserved on : 22.09.2023





                                         Decided on          : 27.09.2023
     Gulab Singh                                                 ....Petitioner.





                                         Versus

     State of Himachal Pradesh                                   ...Respondent.

     Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting? 1

For the petitioner : Mr. Rakesh Kumar Chaudhry, Advocate

For the respondent : Mr. Gautam Sood, Deputy Advocate General.

Satyen Vaidya, Judge

Petitioner is an accused in case FIR No.

158/2020, dated 23.11.2020, registered under

Section 20 of Narcotic Drugs and Psychotropic

Substances, Act (for short 'ND&PS' Act), at Police

Station Padhar, District Mandi, H.P. Petitioner is in

custody since 23.11.2020.

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

2. Petitioner is facing trial for offences

under Section 20 of ND&PS Act in pursuance to

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challan filed by respondent. The allegation against

petitioner is that on 23.11.2020, police party

headed by HC Ajay Kumar No. 48 intercepted

petitioner at place Himri Ganga on finding him

perplexed at the site of Police party. Suspicion was

entertained and the bag carried by the petitioner

was checked. 2.078 Kg. Charas was recovered from

the bag. Case was registered and the petitioner was

arrested.

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 more than two

years and ten months and the trial has not

concluded, rather, it is progressing at snails pace.

4. In its status report, respondent has

submitted that ten out of fifteen prosecution

witnesses have yet been examined.

5. Learned Deputy Advocate General has

opposed the prayer of the petitioner, on the ground

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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 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 all the prosecution

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witnesses have not been examined, despite the fact

that petitioner is in custody since 23.11.2020. In

the considered view of this Court, the

Constitutional guarantee of expeditious trial

cannot be diluted by applying the rigors of

9.

rRecently, to Section 37 of ND&PS Act in perpetuity.

                             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

been incarcerated for prolonged durations.

10. In Mahmood 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,

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 circumstances on record and the length of custody undergone by the

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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:-

r to "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 submissions 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

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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

No. 2273 of 2022.

r to and order dated 04.11.2022, passed in Cr.MP(M)

16. Recently in Criminal Appeal No. 943 of

2023 titled as Mohd Muslim @ Hussain Vs. State

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

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;

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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.

r 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,

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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.

Reverting to the facts of the case, the

petitioner is in custody since 23.11.2020 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.

18. 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. 158/2020, dated 23.11.2020,

registered under Section 20 of ND &PS Act, at

Police Station Padhar, 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

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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.

19. 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)
    27th September, 2023                                        Judge
          (sushma)