Himachal Pradesh High Court
Date Of Decision: 15.10.2024 vs State Of Himachal Pradesh on 15 October, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:9840
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2231 of 2024
Date of Decision: 15.10.2024
________________________________________________________________
Poonam
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner: Mr. Ramesh Sharma, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.
Verma, Additional Advocates General with Mr. Ravi
Chauhan, Deputy Advocate General.
ASI Ranjeet Singh, IO PS Dharampur, present with
record.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Poonam, who is behind the bars since
26.6.2023, has approached this Court in the instant proceedings for grant
of regular bail in case FIR No.67/23, dated 26.6.2023 under Section 20 of
the NDPS Act, registered at PS Dharampur, District Solan, Himachal
Pradesh.
2. Pursuant to order dated 4.10.2024, respondent-State has filed
the status report and ASI Ranjeet Singh, PS Dharampur, District Solan,
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Himachal Pradesh, has come present with record. Record perused and
returned.
3. Close scrutiny of status report/record reveals that that on
26.6.2023, police after having received secret information that lady namely
Poonam indulges in illegal trade of narcotics, constituted a raiding team
and after having associated the independent witnesses apprehended the
above named lady and allegedly, recovered one bag from her containing 724
grams of charas. Since no plausible explanation ever came to be rendered
on record qua the possession of the aforesaid quantity of contraband by the
bail petitioner, police after completion of necessary codal formalities, lodged
FIR, as detailed herein above and arrested her on 26.6.2024 and since
then, she is behind the bars. Since challan stands filed in the court and
nothing remains to be recovered from the bail petitioner, she has
approached this court in the instant proceedings for grant of regular bail on
the ground of delay in the conclusion of the trial.
4. Mr. Rajan Kahol, learned Additional Advocate General, while
fairly admitting factum with regard to filing of challan in the competent
court of law, 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 her, she does not deserve any leniency. While making
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this court peruse the record, learned Additional Advocate General, submits
that one case under NDPS Act already stands registered against the
petitioner, which clearly suggests that bail petitioner is a drug peddler and
as such, in the event of her being enlarged on bail, she may not only flee
from justice, but may indulge in these activities again.
5. Having heard the learned counsel representing the parties and
perused material available on record, this court finds that intermediate
quantity of contraband came to be recovered from the conscious possession
of the bail petitioner in the presence of the 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, having taken
note of the fact that bail petitioner is behind the bars for more than one
year and three months coupled with the fact that till date, prosecution has
not been able to examine all the witnesses, prayer made by the petitioner
for grant of bail deserves to be considered on the ground of inordinate delay
in conclusion of trial. As per status report, till date, prosecution has not
been able to examine even single prosecution witness, meaning thereby,
considerable time is likely to be consumed in conclusion of the trial.
6. 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
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and violation thereof, if any, amounts to violation of the fundamental right,
especially Article 21 of the Constitution of India. 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).
7. 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
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.
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.
6 2024:HHC:9840
9. 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.
10. Hon'ble Apex Court in SLP(Crl) No. 1904 of 2023 titled Sunil
Kumar v. The State of Himachal Pradesh, decided on 29.3.2023, has
ordered enlargement of petitioner therein, who was behind bars for one and
half years, on the ground of delay in trial and conduct of the petitioner.
11. Learned Additional Advocate General, referring to judgment of
a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics
Control Bureau v. Mohit Aggarwal contends that period of detention
cannot be a ground for enlarging the petitioner on bail, especially in the
cases where rigors of Section 37 are attracted.
7 2024:HHC:9840
12. The 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 round 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.
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."
13. In the instant case, bail petitioner is behind bars for more than
one year 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.
8 2024:HHC:9840
14. 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.
15. 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
the Hon'ble Apex Court in the aforesaid judgment that a person is believed
to be innocent until found guilty.
16. 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.
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17. 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.
18. 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.
19. 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.2,00,000/- with two local sureties in the like amount to the
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satisfaction of concerned Chief Judicial Magistrate/trial Court, with
following conditions:
a. She shall make herself 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. She shall not tamper with the prosecution evidence nor hamper the
investigation of the case in any manner whatsoever;
c. She shall not make any inducement, threat or promises to any person
acquainted with the facts of the case so as to dissuade her from disclosing
such facts to the Court or the Police Officer; and
d. She shall not leave the territory of India without the prior permission of
the Court.
20. It is clarified that if the petitioner misuses the liberty or violates
any of the conditions imposed upon her, the investigating agency shall be
free to move this Court for cancellation of the bail.
21. Any observations made hereinabove shall not be construed to
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.
22. 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.
October 15, 2024 ( Sandeep Sharma ),
(manjit) Judge
VIKRAN CHANDEL
DN: C=IN, O=HIGH COURT OF
HIMACHAL PRADESH, OU=
JUDICIARY, Phone=
T 5d2f851af76d452c04fe80af0eb04901
baccf523a962b5b328d35fb9075dbbb
0, PostalCode=171001, S=Himachal
Pradesh, SERIALNUMBER=
b9ba41101dabcec1188a4f694ff769b3
CHAND 4ac01c5f3677265199bb13a3810dec1
7, CN=VIKRANT CHANDEL
Reason: I am approving this
document
EL Location:
Date: 2024.10.17 09:29:09+05'30'
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