Reserved: 05.07.2024 vs _
2024 Latest Caselaw 9450 HP

Himachal Pradesh High Court

Reserved: 05.07.2024 vs _ on 12 July, 2024

Author: Sushil Kukreja

Bench: Sushil Kukreja

1 ( 2024:HHC:5010 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 789 of 2024

Reserved: 05.07.2024 Decided on: 12.07.2024 ___________________________________________________________ Jambeel Shah ....Petitioner

Versus

_ State of Himachal Pradesh ...Respondent Coram

The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?1 _______________________________________________________________

For the petitioner : Mr. Anubhav Chopra, Advocate, vice Mr.

Rahul Singh Verma, Advocate.

For the respondent : Mr. Navlesh Verma, Additional Advocate General with Mr. Raj Negi and Ms. Niyati Thakur, Deputy Advocates

General.

Sushil Kukreja, Judge

By way of instant petition, filed under Section 439 of the

Criminal Procedure Code, the petitioner is seeking bail in case FIR

No. 134/2022, dated 13.08.2022, registered at Police Station Majra,

District Sirmaur, H.P., under Section 22 of the Narcotic Drugs and

Psychotropic Substances Act (hereinafter referred to as "NDPS

Act").

2. The prosecution story, in brief, is that on 13.08.2022,

while the police party was on routine patrolling duty and at about 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2 ( 2024:HHC:5010 )

3:00 P.M. reached at place Kyarda, near Government School, they

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received a secret information that Jambeel Shah and his family was

indulging in the business of selling narcotic drugs. It was also

informed that Jambeel Shah was coming on his Platina motorcycle

(without registration number) towards Johdo to Jagatpur and if his

vehicle was searched, huge quantity of narcotic drugs could be

recovered. Accordingly, police party associated Pradhan, Gram

Panchayat Kyarda Sh. Sagar and Up-Pradhan, Gram Panchayat

Kyarda Sh. Joginder Singh as independent witnesses in the

proceedings and waited for the accused in the jungle adjoining

Uparla Kyarda Sadak Sinchaai Nahar. At about 3:50 P.M., a

motorcycle was seen coming towards Johdo side, which was

signaled to stop. The person driving the motorcycle disclosed his

name as Jambeel Shah (petitioner herein), who was carrying a light

yellow coloured carry bag on the handle of the motorcycle with him.

In presence of the independent witnesses, when the aforesaid carry

bag was searched, it was found containing 59 strips of Parvion Spas

(each strip containing 10 capsules, 59X10=590) were found, which

was a sample of Tramadol Hydrochloride and 75 tablets of

Alprazolam were recovered. On weighment, the total weight of

Parvion Spas, which is sample of Tramadol, was found to be

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268.584 gms and total weight of Alprazolam tablets was found to be

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7.650 gms (268.584+7.650=276.234 gms). However, the petitioner

could not produce any license/permit to transport and possess the

above narcotic drugs. Thereafter, the police completed all the codal

formalities and consequently, FIR as detailed hereinabove was

registered against the petitioner and he was arrested.

3. The bail application has been filed by the petitioner on

the ground that he is innocent and has been falsely implicated in the

present case. He further contended that the trial will take sufficiently

long time to conclude, as out of total 18 witnesses cited by the

prosecution, only one witness has been examined by the

prosecution till date. He also contended that there is inordinate delay

in conclusion of trial, which infringes upon the right of speedy trial of

the petitioner, as such, he is entitled to be released on bail on the

ground that his right of speedy trial has been violated.

4. Per contra, the learned Additional Advocate General

opposed the bail application on the ground that keeping in view the

gravity of the offence alleged to have been committed by the

petitioner and quantity of the recovered contraband, i.e. commercial

quantity, he is not entitled to be enlarged on bail.

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5. I have heard the learned counsel for the petitioner as

.

well as learned Additional Advocate General and have also gone

through the record of the case. The perusal of the record indicates

that the quantity of the Tramadol capsules allegedly recovered from

the possession of the petitioner is 268.584 grams, which is a

commercial quantity. Since the quantity of the capsules falls within

the definition of commercial quantity, therefore, the grant of the bail

in this case is governed by the provision of Section 37 of the NDPS

Act, which reads as under:-

"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A

and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity

to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause

(b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

5 ( 2024:HHC:5010 )

6. The Hon'ble Apex Court in the matter of The State

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(NCT of Delhi) Narcotics Control Bureau Vs. Lokesh Chadha,

(2021) 5 Supreme Court Cases 724, has held that no person

accused for offences involving a commercial quantity shall be

released on bail, where the public prosecutor opposes the

application, unless the Court is satisfied that there are reasonable

grounds for believing that he is not guilty of such offence and that he

is not likely to commit any offence while on bail. The relevant portion

of the said judgment is reproduced hereunder:-

"9. .......Section 37 of the NDPS Act stipulates that no

person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving a commercial quantity shall be

released on bail, where the public prosecutor opposes the application, unless the Court is satisfied "that there are

reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.................".

7. Thus, in view of the aforesaid decision of Hon'ble Apex

Court, unless the conditions as laid down under Section 37 of the

NDPS Act are satisfied, the bail cannot be granted to an accused,

who has been found involved in the commercial quantity of the

contraband under the provisions of the NDPS Act. Moreover, the

limitations on granting of bail specified in clause (b) of sub-section (1)

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of Section 37 of the NDPS Act are in addition to the limitations under

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the Code of Criminal Procedure. In the instant case, the quantity of

the Tramadol capsules involved, is 268.584 grams, however, the

petitioner has failed to satisfy the conditions for grant of bail, as

provided under Section 37 of the NDPS Act.

8. The learned counsel for the petitioner contended that

the petitioner is in judicial custody since 13.08.2022 and out of total

18 witnesses cited by the prosecution, only 01 witness has been

examined till date, as such, he deserves to be released on bail on the

ground of delay in trial. Although, Article 21 of the Constitution of

India guarantees speedy trial and an under trial prisoner cannot be

detained in jail/custody for an indefinite period, however, merely

because of the fact that the petitioner is in custody for the last about

two years is no ground to grant him bail, as the trial in the case has

commenced and out of total eighteen witnesses cited by the

prosecution one witness has already been examined. Therefore, the

learned trial Court can always be directed to conclude the trial

expeditiously.

9. Hence, for the reasons mentioned above, the bail

application filed by the petitioner is dismissed. However, taking into

consideration the fact that the petitioner is behind the bars since

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13.08.2022, the learned trial Court is directed to conclude the trial on

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or before 31st December, 2024.

10. Be it stated that any expression of opinion given in this

order does not mean an expression of opinion on the merits of the

case and the trial Court will not be influenced by any observations

made therein.

    July 12, 2024
         (raman)
                          r              to               ( Sushil Kukreja )
                                                                Judge