Himachal Pradesh High Court

Date Of Decision: 01.10.2024 vs State Of Himachal Pradesh on 1 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                   2024:HHC:9515




         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                                            Cr. MP (M) No.2064 of 2024

                                                          Date of Decision: 01.10.2024
------------------------------------------------------------------------------------------------
Gopal Singh                                                                      ...Petitioner
                                            Versus

State of Himachal Pradesh                                                    ...Respondent
------------------------------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1
---------------------------------------------------------------------------------------------
For the Petitioner:                          Mr. K.S.Gill and Pankaj Mehta,
                                             Advocates.
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, Gopal Singh, who is behind the

bars for approximately one year, 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. 206 of 2023, dated 17.10.2023, under Sections 20, 29-61-85

of the NDPS Act, registered at police Station, Paonta Sahib,

District Sirmour, Himachal Pradesh. Respondent-State has filed

status report and HC Sandeep Singh has come present with the

record. Record perused and returned.

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

2024:HHC:9515

2. Close scrutiny of the status report/record reveals that

on 17.10.2023, at about 7.30 AM, police received secret

information that person traveling in Pickup bearing registration

No. HP-08A-5417, indulges in illegal trade of narcotics and at this

juncture, they were carrying huge quantity of contraband. After

receipt of aforesaid information, police apprehended afore vehicle,

which at the relevant time was parked on the road side. Since

occupants of the car after having seen the police got perplexed,

police after having associated independent witnesses, affected the

search of the vehicle as well as occupants of the car. Allegedly,

police recovered one rucksack (Pithu bag) from the vehicle

containing huge quantity of contraband. On weighing, police found

that 1.209 Kgs. of charas/sulfa was being transported by the

occupants in the vehicle, as detailed hereinabove. Since, no

plausible explanation ever came to be rendered on record qua

possession of aforesaid commercial quantity of contraband, police

after having lodged the FIR, as detailed hereinabove, arrested

both the petitioners and since then they both are behind the bars.

Since investigation in the case is complete and nothing remains to

be recovered from the bail petitioner, he has approached this Court

for grant of regular bail on the ground of in ordinate delay in

conclusion of the trial.

2024:HHC:9515

3. While fairly admitting factum with regard to filing of the

challan in the competent Court of law, Mr. B.C.Verma, learned

Additional Advocate General, contends that though nothing

remains to be recovered from the bail petitioner, but keeping in

view the gravity of offence alleged to have been committed by him,

he does not deserve any leniency. While making reference to the

quantity of the contraband recovered from the vehicle, learned

Additional Advocate General states that petitioner is a drug peddler

and since contraband was recovered in the presence of the

independent witnesses, he cannot be permitted to state that he has

been falsely implicated. He states that in the event of petitioner's

being enlarged on bail, he may not only flee from justice, but may

again indulge in these activities and as such, prayer made on his

behalf for grant of bail may be rejected out rightly.

4. Having heard learned counsel for the parties and

perused material available on record, this Court finds that as per

own case of the prosecution present bail petitioner had reached on

the spot after purchase of contraband by co-accused Kamal, who

disclosed to the police that while he had come to unload iron bars

at Paonta Sahib and had parked his vehicle near Badri Pull, one

Nepali offered him to sell cannabis for sum of sum of

Rs. 50,000/-. He allegedly disclosed that he called his nephew

Gopal i.e. present bail petitioner about the price of cannabis, who 2024:HHC:9515

advised him to purchase the same as it may subsequently fetch

higher rate of Rs. 70,000/- to 80,000/- in the market. Once

aforesaid contraband was purchased by co-accused Kamal,

allegedly bail petitioner also reached on the spot and while

contraband was recovered from the vehicle both the petitioner and

co-accused Kamal were present in the vehicle.

5. No doubt, in the case at hand, rigours of Section 37 of

the Act are attracted for the reason that commercial quantity of

contraband came to be recovered from the vehicle being driven by

co-accused Kamal, but bare perusal of Section 37 nowhere

suggests that there is complete bar under aforesaid provision of

law to grant bail in cases involving commercial quantity, rather bare

reading of section 37 clearly reveals that Court can proceed to

consider the prayer made, if any, for grant of bail in the cases

involving commercial quantity, but for that purpose, Court is to first

afford opportunity of hearing to the public prosecutor and in case it

is satisfied that person concerned has been falsely implicated and

there is no likelihood of his indulging in illegal trade again, it can

proceed to grant bail in the cases involving commercial quantity. In

the case at hand, mere allegation against the petitioner is that he

had consented/advised co-accused Kamal to purchase contraband

for sum of Rs. 40,000/-but there is nothing on record that aforesaid

sum of Rs. 40,000/- was transferred by the petitioner to co-

2024:HHC:9515

accused Kamal. It is also not in dispute that present bail petitioner

reached near the offending vehicle after deal to purchase

contraband was complete interse co-accused Kamal and Nepali.

Whether petitioner had actually asked co-accused to buy the

contraband for sum of Rs. 40,000/- or Rs. 50,000/-, is a question to

be decided by the Court below in totality of evidence, but keeping

in view the aforesaid glaring aspect of the matter, there is no

justification to curtail the freedom of the petitioner for indefinite

period during the trial, especially when nothing remains to be

recovered from him.

6. Leaving everything aside, this Court cannot lose sight

of the fact that bail-petitioner is behind bars for more than one year

and till today, prosecution has not been able to examine even a

single witness, out of 25 prosecution witnesses. Though, status

report reveals that for recording the statements of prosecution

witnesses, Court below has fixed the matter for 24.10.2024, but

this Court having taken note of the fact that it took more than one

year for Court below to frame charge, has reason to believe and

presume that considerable time is likely to be consumed in the

conclusion of trial and in case, petitioner is left to incarcerate for

indefinite period during trial, that would amount to pretrial

conviction, which is otherwise not permissible in law.

2024:HHC:9515

7. By now, it is well settled that speedy trial is legal right

of the accused and one cannot be made to suffer indefinitely for

delay in trial and as such, this Court sees no reason to keep the

bail petitioner behind the bars for indefinite period during trial.

Delay in trial has been held to be in violation of the right

guaranteed under Article 21 of Constitution of India. Reliance is

placed on judgment passed by the Hon'ble Apex Court in case

titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC

731, relevant para whereof has been reproduced herein below:-

"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. 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.

2024:HHC:9515

9. Placing reliance upon aforesaid judgments, a

Co-ordinate Bench of this Court in CrMP(M) No. 1328 of 2022 titled

Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022,

also ordered for enlargement of an accused, who was allegedly

apprehended carrying commercial quantity of Tramadol, on the

ground of delay in conclusion of trial.

10. Apart from above judgment, Co-ordinate Bench

of this Court while granting bail vide order dated 22.3.2021 in

CrMP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal

Pradesh, also placed reliance upon a judgment delivered by a

three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit

Singh Moni v. State of Himachal Pradesh, decided on

12.10.2020, wherein petitioner was allegedly found in possession

of 3285 grams of charas from a vehicle, wherein four other persons

were sitting.

11. Learned Counsel appearing for the petitioner, to

substantiate his plea for enlarging the petitioner on bail, has

referred order dated 12.10.20220 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 2024:HHC:9515

till then out of 14 witnesses, 7 witnesses were yet to be examined

and last witness was examined in February, 2020 and, thereafter,

there as no further progress in the trial.

12. Learned Additional Advocate General, referring to

judgment of a three Judges Bench of Supreme Court, passed on

19.7.2022 in NarcoticsControlBureau v. MohitAggarwal

contends that period of detention cannot be a ground for enlarging

the petitioner on bail.

13. The learned Counsel appearing for the

petitioner submits that in Mohit Aggarwal, huge commercial

quantity of 20 kilograms of Tramadol, against minimum commercial

quantity of 250 grams, was recovered, whereas, in the present

case, the recovered quantity is little more than the commercial

quantity.

14. In similar circumstances, in CrMP(M) No. 1255

of 2022, titled Puran Chand v. State of Himachal Pradesh,

decided on 28.7.2022, another Co-ordinate Bench of this Court,

having taken note of inordinate delay in conclusion of trial, ordered

enlargement on bail of the person, who was apprehended with

1.996 kg of charas.

15. Recently, Hon'ble Apex Court in Javed Gulam Nabi

Shaikh Vs. State of Maharashtra and Another, Criminal Appeal

No.2787 of 2024, decided on 03.07.2024, adversely commented 2024:HHC:9515

upon the approach of trial Court as well as High Court while

considering the prayer for grant of bail. In the aforesaid judgment,

Hon'ble Supreme Court having taken note of the fact that appellant

in that case was in jail for last four years and Court till that date

was not able to frame charges, proceeded to enlarge accused on

bail in a case registered under the provisions of Unlawful Activities

(Prevention) Act, 1967. In no uncertain terms, Hon'ble Apex Court

in aforesaid judgment held that, however serious a crime may be,

an accused has right to speedy trial, as enshrined in Article 21 of

the Constitution of India. Relevant Paras of aforesaid judgment are

reproduced hereinbelow, which reads as under:

"7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects:

(i) The appellant is in jail as an under-trial prisoner past four years;

(ii) Till this date, the trial court has not been able to even proceed to frame charge; and

(iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.

8. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.

10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in 2024:HHC:9515

Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

11. The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of bail is to secure the attendance of the accused at the trial, that 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 and that it is indisputable that bail is not to be withheld as a punishment.

12. Long back, in Hussainara Khatoon v. Home Secy., 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 Article21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of along delayed trial in violation of his fundamental right under Article 21."

2024:HHC:9515

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 maybe, 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 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 speedy trial on the ground that he did not ask for or insist upon a speedy trial."

14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023INSC 311, this Court observed 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 31stDecember 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. 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 KeralaHigh Court in A Convict Prisoner v. State reported in 1993Cri 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, 2024:HHC:9515

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"(also see Donald Clemmer's 'The Prison Community' published in 1940). 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. The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as "the 2008 Act") mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.

16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43- D(5) of the UAP Act and observed as under : (SCC p. 722, para 17) "17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed,both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings,the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being 2024:HHC:9515

completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."

17. In the recent decision, Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973would apply:

"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."

18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents,juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, maybe, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or 2024:HHC:9515

the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

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."

16. Hon'ble Apex Court as well as this Court in catena of

cases have repeatedly held that one is deemed to be innocent till

the time guilt, if any, of his/her is not proved in accordance with

law. In the case at hand also, guilt, if any, of the accused is yet to

be proved in accordance with law, by leading cogent and

convincing material on record and as such, his incarceration for

indefinite period is clear cut violation of Fundamental Right granted

under Article 21 of the Constitution of India. Apprehension

expressed by the learned Additional Advocate General that in the

event of petitioner's being enlarged on bail, he may flee from

justice, can be best met by putting the bail petitioner to stringent

conditions as has been fairly stated by the learned counsel for the

petitioner.

17. 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 2024:HHC:9515

proved. It has been further held by the Hon'ble Apex Court in the

aforesaid judgment that a person is believed to be innocent until

found guilty.

18. 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.

19. 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.

2024:HHC:9515

20. 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.

21. 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