Himachal Pradesh High Court
Date Of Decision: 24.08.2024 vs State Of Himachal Pradesh on 24 August, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:7343
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.MP(M) No.1742 of 2024
Date of Decision: 24.08.2024
_____________________________________________________________________
Vikas Maggar
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the petitioner: r Mr. Yashveer Singh Rathore, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C.Verma, Additional Advocate Generals, with Mr.
Ravi Chauhan, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely, Vikas Maggar, who is behind the bars
since 18.02.2022, has approached this Court in the instant proceedings
filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, for
grant of regular bail in case FIR No.60 of 2022 dated 17.02.2022, under
Sections 20 of the NDPS Act, registered at PS Sadar, District Kullu, H.P.
Respondent-State has filed status report and ASI Jai Singh has come
present alongwith the record. Record perused and returned.
2. Close scrutiny of status report/record reveals that that on
17.02.2022, while HC Sandeep No.23 alongwith other police officials was
going towards Chalal from Katgala on patrolling duty, he saw one person
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coming towards Chalal carrying one bag in his hand. Since afore person
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after having seen the police, got perplexed and made an attempt to flee
away from the spot, police apprehended him and allegedly recovered
commercial quantity of contraband i.e. 2.007 Kgm. of charas from the bag
being carried by him. Since, no plausible explanation ever came to be
rendered on record qua possession of aforesaid quantity of contraband by
the bail petitioner, police after completion of necessary codal formalities
lodged the FIR, as detailed herein above, and since then, petitioner is
behind the bars. Since challan stands filed in the competent court of law
and nothing remains to be recovered from the bail petitioner, he has
approached this court in the instant proceedings for grant of regular bail on
the ground of delay in the conclusion of the trial.
3. While fairly acknowledging factum with regard to filing of
challan in the competent court of law, Mr. Ravi Chauhan, learned Deputy
Advocate General, contends that though nothing remains to be recovered
from the bail petitioners, but keeping in view the gravity of offence alleged
to have been committed by him, he does not deserve any leniency. Learned
Deputy Advocate General, submits that there is overwhelming evidence
available on record suggestive of the fact that bail petitioner is a drug
peddler and in case, he is enlarged on bail, he may not only flee from
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justice, but may indulge in these activities again. He further states that
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otherwise taking note of quantity of contraband allegedly recovered from
the conscious possession of the bail petitioner, he is not entitled to bail in
terms of provision contained in section 37 of the Act.
4. Having heard the learned counsel representing the parties and
perused material available on record, this court finds that on 17.02.2022,
police recovered contraband, as detailed hereinabove, in the presence of
independent witnesses and as such, this Court is not persuaded to agree
with learned counsel for the petitioner that petitioner has been falsely
implicated. However, there appears to be merit in the contention of learned
counsel for the petitioner that inordinate delay is being caused in
conclusion of trial, as a result thereof, freedom of the petitioner is being
curtailed for indefinite period during trial, which is not permissible under
law. As per status report, prosecution intends to examine 16 prosecution
witnesses to prove the guilt of the petitioner, but as of today, only five
prosecution witnesses have been examined. Last prosecution witness was
examined on 8.11.2023 and thereafter, court has fixed the date on
11.12.2024 for examining two witnesses. Since, it took almost two years for
the prosecution to examine five witnesses, this Court has reason to believe
and presume that considerable time is likely to be consumed in the
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conclusion of the trial and in case during aforesaid period petitioner is left
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to incarcerate in jail for indefinite it would amount to pre-trial conviction,
which is not permissible under law.
5. No doubt, rigours of 37 of the Act are attracted in the present
case on account of the fact that commercial quantity of contraband came to
be recovered from the conscious possession of the bail petitioner, however,
bare perusal of aforesaid provision nowhere suggests that this Court is
estopped from considering the prayer for grant of bail in the cases involving
commercial quantity of contraband, rather in such cases, court after having
afforded due opportunity of hearing to public prosecutor can always
proceed to grant bail, if it is satisfied that the bail petitioner has been
falsely implicated and in the event of his being enlarged on bail he will not
indulge in such activities again.
6. Otherwise also, Question which needs determination in the
case at hand is "whether the provisions of Section 37 of the Act can be
construed to have same efficacy throughout the trial notwithstanding the
period of custody of the accused, especially, when it is weighed against his
fundamental right to have expeditious disposal of trial." Hon'ble Apex Court
as well as this Court in catena of cases have categorically held that speedy
trial is right guaranteed to the accused and violation thereof, if any,
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amounts to violation of the fundamental right, especially Article 21 of the
.
Constitution of India.
7. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v.
State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be
in violation of right guaranteed to an accused under Article 21 of the
Constitution of India. Relevant para of the afore judgment reads as under:-
"11. This Court has consistently recognised the right of the accused
for a speedy trial. Delay in criminal trial has been held to be in
violation of the right guaranteed to an accused under Article 21 of the
Constitution of India. (See: Supreme Court Legal Aid Committee v.
Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of
India, (1996) 2 SCC 616) Accused, even in cases under TADA, have
been released on bail on the ground that they have been in jail for a
long period of time and there was no likelihood of the completion of the
trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999)
9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
8. Learned counsel for the petitioner while inviting attention of
this court to judgment dated 29.3.2023 passed in Petition for Special
Leave to Appeal (Crl.) No. 1904 of 2023, Sunil Kumar v. State of
Himachal Pradesh, submits that petition having been filed by bail
petitioner deserves to be allowed on the ground of inordinate delay in
conclusion of the trial. Perusal of the aforesaid judgment reveals that
petitioner was behind bars for more than 1½ years and trial was yet to be
concluded and Hon'ble Apex Court having taken note of inordinate delay in
conclusion of the trial, proceeded to enlarge the petitioner in that case on
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bail. Learned counsel also invited attention of this Court to the judgments
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dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023,
titled Puran Chand v. State of HP and Prem chand v. State of HP., to
state that in similar facts and circumstances, coordinate Bench of this
Court as well as this Court enlarged the accused on bail on the ground of
inordinate delay. Having perused aforesaid judgments passed by the
coordinate Bench of this Court, this Court finds that in both the cases,
commercial quantity of contraband was recovered from the accused, but yet
court having taken note of the fact that they were behind the bars for more
than three years, proceeded to enlarge them on bail.
9. Hon'ble Apex Court having taken note of inordinate delay in
conclusion of trial in similar facts ordered for enlargement of accused on
bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special
Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul
Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave
to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also
framed under Narcotic Drugs and Psychotropic Substances Act and were
behind the bars for approximately two years and there was no likelihood of
conclusion of trial in near future, subject to certain conditions.
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10. Learned Counsel appearing for the petitioner, to substantiate
.
his plea for enlarging the petitioner on bail, has referred order dated
12.10.2020 passed by a three judges Bench of the Supreme Court, in
Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of
Himachal Pradesh, whereby petitioner therein, facing trial for recovery of
3.285 kilograms charas from a vehicle, alongwith four other persons, was
enlarged on bail, for having been in detention for 2 years and 7 months, as
till then out of 14 witnesses, 7 witnesses were yet to be examined and last
witness was examined in February, 2020 and, thereafter, there was no
further progress in the trial.
11. Hon'ble Apex Court vide judgment dated 26.4.2023, passed in
Petition for Special Leave to Appeal (Crl.) No. 2500 of 2023, titled
Allepu Ramesh v. The State of Chhattisgarh, having taken note of the
inordinate delay in conclusion of the trial coupled with the fact that
accused in that case was behind bars for more than 1 year, enlarged him
on bail on the ground of inordinate delay in conclusion of the trial. Relevant
paras of the aforesaid judgment read as under:
"3.Shri Sumeer Sodhi, learned counsel for the respondent/State
vehemently opposes the application. He submits that in addition to
the case being of NDPS Act, the petitioner originally belongs to
Telangana and if he is released on bail, it will be difficult to trace
him.
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4. Taking into consideration the fact that the petitioner has already
.
been incarcerated for a period of more than one year and that the
independent witnesses have turned hostile, we are inclined to grant
bail.
5. The petitioner is directed to be released on bail in connection with
Special NDPS Case No.22 of 2022, to the satisfaction of the Trial
Court."
12. In the instant case, bail petitioner is behind bars for more than
two years and till date trial has not been completed and there are very
bleak chances of conclusion of the same in near future, as such, there
appears to be no justification to keep the bail petitioner behind the bars for
an indefinite period.
13. Hon'ble Apex Court and this Court in a catena of cases have
repeatedly held that one is deemed to be innocent, till the time, he/she is
proved guilty in accordance with law. Apprehension expressed by learned
Assistant Advocate General, that in the event of being enlarged on bail, bail
petitioner may flee from justice or indulge in such offences again, can be
best met by putting the bail petitioner to stringent conditions.
14. Hon'ble Apex Court in Criminal Appeal No. 227/2018,
Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has
held that freedom of an individual cannot be curtailed for indefinite period,
especially when his/her guilt is yet to be proved. It has been further held by
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the Hon'ble Apex Court in the aforesaid judgment that a person is believed
.
to be innocent until found guilty.
15. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau
of Investigation (2012)1 Supreme Court Cases 49 has held that gravity
alone cannot be a decisive ground to deny bail, rather competing factors are
required to be balanced by the court while exercising its discretion. It has
been repeatedly held by the Hon'ble Apex Court that object of bail is to
secure the appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor preventative.
16. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC
218, Hon'ble Apex Court has held that the object of the bail is to secure the
attendance of the accused in the trial and the proper test to be applied in
the solution of the question whether bail should be granted or refused is
whether it is probable that the party will appear to take his trial. Otherwise
also, normal rule is of bail and not jail. Apart from above, Court has to keep
in mind nature of accusations, nature of evidence in support thereof,
severity of the punishment, which conviction will entail, character of the
accused, circumstances which are peculiar to the accused involved in that
crime.
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17. The Apex Court in Prasanta Kumar Sarkar versus Ashis
.
Chatterjee and another (2010) 14 SCC 496, has laid down various
principles to be kept in mind, while deciding petition for bail viz. prima facie
case, nature and gravity of accusation, punishment involved, apprehension
of repetition of offence and witnesses being influenced.
18. In view of the aforesaid discussion as well as law laid down by
the Hon'ble Apex Court, petitioner has carved out a case for grant of bail,
accordingly, the petition is allowed and the petitioner is ordered to be
enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in
the sum of Rs.5,00,000/- with two local sureties in the like amount to the
satisfaction of concerned Chief Judicial Magistrate/trial Court, with
following conditions:
(a) He shall make himself available for the purpose of interrogation, if
so required and regularly 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 promises 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 shall not leave the territory of India without the prior permission
of the Court.
19. It is clarified that if the petitioner misuses the liberty or violates
any of the conditions imposed upon him, the investigating agency shall be
free to move this Court for cancellation of the bail.
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20. Any observations made hereinabove shall not be construed to
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be a reflection on the merits of the case and shall remain confined to the
disposal of this application alone. The petition stands accordingly disposed
of.
21. The bail petitioner is permitted to produce copy of the order
downloaded from the High Court Website and the trial court shall not insist
for certified copy of the order, however, it may verify the order from the
High Court website or otherwise.
August 24, 2024 ( Sandeep Sharma ),
(shankar) Judge
