Rajesh Kumar vs State Of H.P
2024 Latest Caselaw 14682 HP

Himachal Pradesh High Court

Rajesh Kumar vs State Of H.P on 1 October, 2024

( 2024:HHC:9406 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.2038 of 2024 Reserved on 20.09.2024 Decided on 01.10.2024

Rajesh Kumar .........Petitioner Versus State of H.P. .......Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Suneel Awasthi, Advocate. For Respondent : Mr. Ajit Sharma, Deputy Advocate General for Respondent/State.

Rakesh Kainthla, Judge The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested on 25.07.2023 in FIR No.140/23, dated 25.07.2023,

registered for the commission of an offence punishable under

Section 22 of Narcotic Drugs and Psychotropic Substances Act,

1985 at Police Station Barotiwala, Nalagarh, District Solan, H.P.

As per the prosecution, the petitioner was found in possession of

960 tablets of 'Lomotil' weighing 60.48 grams and 720 capsules

Whether reporters of Local Papers may be allowed to see the judgment?

of 'Pyeevon Spas Plus' weighing 473.76 grams i.e. total weight of

534.24 grams. The petitioner had earlier approached this Court

twice but his bail petitions were dismissed by this Court. The

petitioner has been behind the bars for more than one year and

one month, and not even a single prosecution witness has been

examined. The case was fixed for prosecution evidence from

27.08.2024 till 31.08.2024, but no witness was produced on

27.08.2024 and 28.08.2024. Learned Special Judge-II adjourned

the case for six months vide order dated 29.08.2024 and listed

the matter on 24.02.2025. The trial against the petitioner is not

likely to conclude soon. The petitioner is innocent and he was

falsely implicated. He would abide by all the terms & conditions

which the Court may impose; hence, the petition.

2. The petition is opposed by filing a status report,

asserting that the Police party was on patrolling duty when a

secret information was received that the petitioner was selling

drugs in his cycle repair shop. The Police sent the information to

the Superior Officer and reached the petitioner's shop with

independent witnesses. A search of the shop was conducted and

960 tablets of Lomotil, three boxes containing 720 capsules of

Dicyclomine HCL, Tramadol HCL and Acetaminophen Capsules

Pyeevan Spas Plus were found during the search. The total

weight of Pyeevon Spas Plus was found to be 473.76 grams and

the total weight of the Lomotil tablets was found to be 60.48

grams. Thus, 534.42 grams of prohibited drugs were found with

the petitioner. The Police seized the drugs and arrested the

petitioner. As per the report of chemical analysis, the Lomotil

was a sample of Diphenoxylate tablets and Pyeevon Spas Plus

indicated the presence of Tramadol. The challan was prepared

and presented before the learned Trial Court on 13.09.2023. The

matter is now listed for the prosecution evidence w.e.f.

24.02.2025 till 28.02.2025; hence, the status report.

3. I have heard Mr. Suneel Awasthi, learned counsel for

the petitioner and Mr. Ajit Sharma, learned Deputy Advocate

General for respondent/State.

4. Mr. Suneel Awasthi, learned counsel for the

petitioner submitted that the petitioner has been behind the

bars for more than one year, and not a single witness has been

examined so far. The learned Special Judge-II has listed the

matter for evidence in February 2025, which shows the casual

approach of the learned Trial Court while dealing with the cases

of under-trial prisoners. Petitioner's trial is not likely to be

concluded soon with this approach. He prayed that the present

petition be allowed and the petitioner be released on bail.

5. Mr. Ajit Sharma, learned Deputy Advocate General for

the respondent/State submitted that there is no delay in the trial

on the part of the prosecution. The prosecution is ready to

examine the witnesses on any convenient date. The learned Trial

Court posted the matter in the year 2025 and the prosecution

and the society should not be penalised for the act of the learned

Trial Court. He prayed that the present petition be dismissed.

6. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

7. A perusal of the order sheets of the learned Trial

Court (Annexure P-4) shows that the matter was listed for

prosecution evidence on 30.08.2024 and 31.08.2024, but the

learned Special Judge was on Departmental Training on both

dates; hence, the matter was ordered to be listed for

prosecution's evidence w.e.f. 24.02.2025 till 28.02.2025. It was

further stated that dates beyond six months were fixed because

several other trials were pending for recording evidence on

earlier dates.

8. A perusal of the order sheets shows that the learned

Trial Court was conscious of the fact that the matter was listed

after six months, but opined that several other trials were

pending for recording evidence on the earlier dates. It is not

mentioned that all of them pertained to the under-trial

prisoners. The learned Trial Court had failed to notice that the

accused was in Judicial custody and he had a right to speedy

trial.

9. It was held in Pankaj Kumar v. State of Maharashtra,

(2008) 16 SCC 117: (2010) 4 SCC (Cri) 217: 2008 SCC OnLine SC 1055

that right of speedy trial in every criminal proceedings is an

unalienable right of the accused. It was observed at page 126:

"22. It is, therefore, well settled that the right to speedy trial in all criminal prosecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases.

10. It was held in Ajay Kumar Choudhary v. Union of India,

(2015) 7 SCC 291: (2015) 2 SCC (L&S) 455: 2015 SCC OnLine SC 127

that the right to a speedy trial is a fundamental right of the

accused. It was observed at page 298:

"13. Article 12 of the Universal Declaration of Human Rights, 1948 assures that:

"12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

14. More recently, the European Convention on Human Rights in Article 6(1) promises that:

"6. (1) in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...."

and in its second sub-article that:

"6. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

15. The Supreme Court of the United States struck down the use of nolle prosequi, an indefinite but ominous and omnipresent postponement of civil or criminal prosecution in Klopfer v. North Carolina [18 L Ed 2d 1: 386 US 213 (1967)].

16. In Kartar Singh v. State of Punjab [(1994) 3 SCC 569:

1994 SCC (Cri) 899] the Constitution Bench of this Court unequivocally construed the right of speedy trial as a fundamental right, and we can do no better than extract

these paragraphs from that celebrated decision: (SCC pp. 638-39, paras 86-87) "86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of the investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from the impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.

87. This Court in Hussainara Khatoon (1) v. State of Bihar [(1980) 1 SCC 81: 1980 SCC (Cri) 23] while dealing with Article 21 of the Constitution of India has observed thus: (SCC p. 89, para 5) '5. ... No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.

The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied a speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long-delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally

freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute a violation of his fundamental right under Article 21.'"

17. The legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental enquiries has been emphasised by this Court on numerous occasions. The Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225: 1992 SCC (Cri) 93] underscored that this right to speedy trial is implicit in Article 21 of the Constitution and is also reflected in Section 309 of the Code of Criminal Procedure, 1973; that it encompasses all stages viz. investigation, inquiry, trial, appeal, revision and retrial; that the burden lies on the prosecution to justify and explain the delay; that the Court must engage in a balancing test to determine whether this right had been denied in the particular case before it."

11. It was held in Shaheen Welfare Assn. v. Union of India,

(1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot be kept

behind bars when there is no prospect of trial being concluded

expeditiously. It was observed at page 621:

"8. It is in this context that it has become necessary to grant some relief to those persons who have been deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and the nation needs to be safeguarded looking to the nature of the offences these undertrials have been charged with. But the ultimate justification for such deprivation of liberty pending trial can only be their being found guilty of the offences for which they have

been charged. If such a finding is not likely to be arrived at within a reasonable time some relief becomes necessary."

12. Similarly, it was laid down by the Hon'ble Supreme

Court in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321: (2022) 3

SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be

subjected to unending detention pending trial. It was

observed at page 335:

"40. Having held so, we cannot be oblivious to what has been urged on behalf of the respondent-accused that cancellation of bail by this Court is likely to be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed under Article 21 of the Constitution (see Union of India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713, paras 15 and 17] )."

13. It was laid down in Mohd. Muslim v. State (NCT of

Delhi), 2023 SCC OnLine SC 352 that the right of speedy trial is a

constitutional right of an accused. The right of bail is curtailed

on the premise that the trial would be concluded expeditiously.

It was observed: -

"13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest - as observed in Vaman Narain Ghiya v.

State of Rajasthan, [2008] 17 SCR 369: (2009) 2 SCC 281 ('the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal....'). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3 SCC 569 made observations to this effect. In Shaheen Welfare Association v. Union of India, [1996] 2 SCR 1123:

(1996) 2 SCC 616 again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on:

A conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under- trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more

necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods."

14. The Court highlighted the effects of pre-trial

detention and the importance of speedy trial as under:

"22. Before parting, it would be important to reflect that laws which impose stringent conditions for the grant of bail, may be necessary in the 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 of 31 st December 2021, over 5,54,034 prisoners were lodged in jails against a total capacity of 4,25,069 lakhs in the country[National Crime Records Bureau, Prison Statistics in India https://ncrb. gov. in/sites/default/files/P SI-202 1/Executive ncrb Summary- 2021.pdf]. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

23. 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. State, 1993 Cri LJ 3242 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. '

24. 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'[Working Papers - Group on Prisons & Borstals -

1966 U.K.] (also see Donald Clemmer's 'The Prison Community' published in 1940[Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, 'Donald Clemmer's Concept of Prisonisation', available at:

https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobec ki_sklad.pdf (accessed on 23rd March 2023).]). 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."

15. It was laid down by the Hon'ble Supreme Court

recently in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and

Anr. in Criminal Appeal No. 2787 of 2024 decided on 03.07.2024

that the right to speedy trial of the offenders facing criminal

charges is an important facet of Article 21 of the Constitution of

India and inordinate delay in the conclusion of the trial entitles

the accused to grant of bail, it was observed: -

"12 Long back, in Hussainara Khatoon v. Home Secy., the State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court".

Remarking that a valid procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that:

"Now obviously procedure prescribed by law for depriving a person of liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied a speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long-delayed trial in violation of his fundamental right under Article 21."

13 The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter, the court re-emphasized the right to speedy trial and further held that an accused, facing prolonged trial, has no option: "The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of

accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands a speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to a speedy trial on the ground that he did not ask for or insist upon a speedy trial."

16. It was further held that if the State or any

prosecuting agency including the Court concerned has no

wherewithal to provide the right of speedy trial to the accused,

then the bail should not be opposed on the ground that crime is

serious. It was observed

"19 If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."

17. This position was reiterated in Balwinder Singh vs.

State of Punjab SLP (Cr) 8523 of 2024 decided on 09.09.2024

wherein it was observed:

"7. An accused has a right to a fair trial and while a hurried trial is frowned upon as it may not give sufficient time to prepare for the defence, an inordinate delay in

conclusion of the trial would infringe the right of an accused guaranteed under Article 21 of the Constitution.

8. It is not for nothing the Author Oscar Wilde in "The Ballad of Reading Gaol", wrote the following poignant lines while being incarcerated:

"I know not whether Laws be right, Or whether Laws be wrong;

All that we know who be in jail Is that the wall is strong;

And that each day is like a year, A year whose days are long."

18. Thus, the duty to expedite trial is not only with the

prosecution but with the Court as well. In the present case, the

listing of the matter after six months shows the inability of the

learned Trial Court to provide speedy justice to the petitioner

and the premise that his trial would be concluded expeditiously

has been violated; hence, his pre-trial detention is not justified.

19. In view of the above, the present petition is allowed

and the petitioner is ordered to be released on bail subject to his

furnishing bail bonds in the sum of ₹50,000/- with one surety

in the like amount to the satisfaction of the learned Trial Court.

The petitioner while on bail will abide by the following terms

and conditions: -

(i) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.

(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending a visit to the SHO, the Police Station concerned and the Trial Court.

(iv) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

20. It is expressly made clear that in case of violation of

any of these conditions, the prosecution will have the right to

file a petition for cancellation of the bail.

21. The observation made herein before shall remain

confined to the disposal of the petition and will have no bearing,

whatsoever, on the merits of the case.

22. Before parting, it is sincerely hoped and trusted that

the learned Trial Court will show a little sensitivity to the plight

of the undertrial prisoners and their right to speedy trial while

listing their cases.

23. The petition stands accordingly disposed of. A copy

of this order be sent to the Superintendent, Model Jail Kanda,

District Shimla, H.P. and the learned Trial Court by FASTER.

24. A downloaded copy of this order shall be accepted by

the learned Trial Court while accepting the bail bonds from the

petitioner and in case, said Court intends to ascertain the

veracity of the downloaded copy of the order presented to it,

same may be ascertained from the official website of this Court.

                    1st Oct, 2024                                 (Rakesh Kainthla)
                    (manish)                                          Judge