Himachal Pradesh High Court
Dharam Chand vs State Of H.P on 27 September, 2024
Neutral Citation No. ( 2024:HHC:9219 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No 1612 of 2024.
.
Reserved on: 02.09.2024.
Date of Decision: 27.09.2024.
Dharam Chand ...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. Maan Singh, Advocate.
For the Respondent : Mr. Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
regular bail. It has been asserted that the petitioner was arrested
for the commission of an offence punishable under Section 20 of
the Narcotic Drugs and Psychotropic Substances Act (hereinafter
referred to as ND&PS Act) registered at Police Station Sadar,
District Kullu, H.P. in FIR No. 436 of 2022, dated 24.11.2022. The
petitioner has been falsely implicated. He has not committed any
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Page |2
Neutral Citation No. ( 2024:HHC:9219 )
offence. The investigation is complete and the challan has been
filed in the Court of learned Special Judge, Kullu. The petitioner has
.
been in custody since 24.11.2022. The trial has not yet concluded.
The right to the speedy trial of the petitioner is being violated. The
prosecution has cited 18 witnesses and only 7 have been examined
so far. The matter is listed on 06.09.2024 and the trial is not likely
to be concluded shortly. The independent witnesses have turned
hostile and the trial is likely to result in acquittal. The petitioner
would abide by all the terms and 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 on 24.11.2022.
A secret information was received at 2:20 PM that the petitioner
Dharam Chand was going to sell the charas to some person and a
huge quantity of charas could be recovered in case of his seach. The
police completed the formalities and apprehended the petitioner
with the backpack. The search of the backpack was conducted in the
presence of two independent witnesses. 3 kg 616 grams of charas
was recovered from the backpack. The police seized the charas and
arrested the petitioner. As per the report of the analysis, the
substance found in the possession of the petitioner was an extract
Page |3
Neutral Citation No. ( 2024:HHC:9219 )
of cannabis and a sample of charas. The challan has been filed
before the Court on 20.02.2023. The prosecution has cited 18
.
witnesses out of which 7 have been examined and 11 are yet to be
examined. The matter is listed for the prosecution evidence on
06.09.2024 and 07.09.2024.
3. I have heard Mr. Maan Singh learned counsel for the
petitioner and Mr. Jitender Sharma, learned Additional Advocate
General for the respondent/State.
4. Mr. Maan Singh, learned Counsel for the petitioner
submitted that the petitioner is innocent and he was falsely
implicated. The prosecution has only examined seven witnesses out
of 18 cited by it. The right of the speedy trial of the petitioner is
being violated, therefore, he prayed that the present petition be
allowed and the petitioner be released on bail. He has relied upon
the judgments of Bimla Devi vs. State of H.P. Cr. M.P(M) No. 2024:
HHC:6107 and Ankur Chaudhary vs State of M.P. SLP Cr.4648/2024
decided on 28.05.2024 in support of his submission.
5. Mr Jitender Sharma, learned Additional Advocate
General for the respondent/State submitted that the petitioner was
found in possession of the commercial quality of charas and
Page |4
Neutral Citation No. ( 2024:HHC:9219 )
rigours of Section 37 of ND&PS Act apply to the present case. The
prosecution has produced 7 witnesses and the matter is listed on
.
06.09.2024 and 07.09.2024 for prosecution's evidence, the trial is
progressing at normal pace. Hence, 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. The parameters for granting bail were considered by the
Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu
@ Depak, 2023 SCC Online SC 1059, wherein it was observed as
under: -
"12. The grant of bail is a discretionary relief which
necessarily means that such discretion would have to be
exercised in a judicious manner and not as a matter of
course. The grant of bail is dependent upon contextual facts
of the matter being dealt with by the Court and may vary
from case to case. There cannot be any exhaustive
parameters set out for considering the application for a grant
of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind
factors such as the nature of accusations, severity of
the punishment, if the accusations entail a conviction
and the nature of evidence in support of the
accusations;
(b) reasonable apprehensions of the witnesses being
tampered with or the apprehension of there being a
Page |5
Neutral Citation No. ( 2024:HHC:9219 )
threat for the complainant should also weigh with the
Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence
.
establishing the guilt of the accused beyond reasonable
doubt there ought to be always a prima facie
satisfaction of the Court in support of the charge.
(d) Frivolity of prosecution should always be
considered and it is only the element of genuineness
that shall have to be considered in the matter of grant
of bail and in the event of there being some doubt as to
the genuineness of the prosecution, in the normal
course of events, the accused is entitled to have an
order of bail.
13. We may also profitably refer to a decision of this Court
in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav (2004) 7 SCC 528 where the parameters to be taken
into consideration for the grant of bail by the Courts has
been explained in the following words:
"11. The law in regard to grant or refusal of bail is very
well settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter of
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation
of the merit of the case need not be undertaken, there
is a need to indicate in such orders reasons for prima
facie concluding why bail was being granted
particularly where the accused is charged of having
committed a serious offence. Any order devoid of such
reasons would suffer from non-application of mind. It
is also necessary for the court granting bail to consider
among other circumstances, the following factors also
before granting bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
Page |6
Neutral Citation No. ( 2024:HHC:9219 )
(c) Prima facie satisfaction of the court in support of
the charge. (See Ram Govind Upadhyay v. Sudarshan
Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688]
and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri)
.
1124].)"
8. A similar view was taken in State of Haryana vs
Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted.
This Court considered the factors to guide the grant of bail
in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC
598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC
528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14
SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or rejecting
bail to the accused. However, it is equally incumbent upon
the High Court to exercise its discretion judiciously,
cautiously and strictly in compliance with the basic
principles laid down in a plethora of decisions of this Court
on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
Page |7
Neutral Citation No. ( 2024:HHC:9219 )
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
.
grant of bail.'
9. The present case has to be decided as per the parameters
laid down by the Hon'ble Supreme Court.
10. It was specifically stated in the status report that the
petitioner was apprehended with a backpack containing 3 kg 616
grams of charas. The result of the analysis shows that the recovered
substance was found to be an extract of cannabis and a sample of
charas. Therefore, the petitioner was found in possession of 3kg
616 grams of charas, which is a commercial quantity and rigours of
Section 37 of ND&PS Act apply to the present case.
11. Section 37 of the NDPS Act provides that in an offence
involving commercial quantity, the Court should be satisfied that
the accused is not guilty of the commission of an offence and is not
likely to commit any offence while on bail. It reads as under:
"37. Offences are 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 section 24 or section 27A
Page |8
Neutral Citation No. ( 2024:HHC:9219 )
and also for offences involving commercial quantity
shall be released on bail or his bond unless-
(i) the Public Prosecutor has been allowed to
.
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such an 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."
12. This Section was interpreted by the Hon'ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
738 and it was held that in the absence of the satisfaction that the
accused is not guilty of an offence and he is not likely to commit an
offence while on bail, he cannot be released on bail. It was
observed:
"7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said Section. They are :
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,
(3) Under Section 27A and
(4) Of offences involving commercial quantity.
8. The accusation in the present case is with regard to the
fourth factor namely, commercial quantity. Be that as it
Page |9
Neutral Citation No. ( 2024:HHC:9219 )
may, once the Public Prosecutor opposes the
application for bail to a person accused of the
enumerated offences under Section 37 of the NDPS Act,
in case, the court proposes to grant bail to such a
.
person, two conditions are to be mandatorily satisfied
in addition to the normal requirements under the
provisions of the Cr.P.C. or any other enactment.
(1) The court must be satisfied that there are
reasonable grounds for believing that the person
is not guilty of such offence;
(2) that person is not likely to commit any offence
while on bail."
13. This position was reiterated in State of Kerala Versus
Rajesh AIR 2020 SC 721 wherein it was held:
"19. This Court has laid down broad parameters to be
followed while considering the application for bail
moved by the accused involved in offences under the
NDPS Act. In Union of India vs. Ram Samujh and Ors.,
(1999) 9 SCC 429, it has been elaborated as under:-
"7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to
and followed. It should be borne in mind that in a
murder case, the accused commits the murder of
one or two persons, while those persons who are
dealing in narcotic drugs are instrumental in
causing death or in inflicting death-blow on a
number of innocent young victims, who are
vulnerable; it causes deleterious effects and a
deadly impact on the society; they are a hazard to
the society; even if they are released temporarily,
in all probability, they would continue their
nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. The reason may be
the large stake and illegal profit involved. This
Court, dealing with the contention with regard to
P a g e | 10
Neutral Citation No. ( 2024:HHC:9219 )
punishment under the NDPS Act, has succinctly
observed about the adverse effect of such
activities in Durand Didier vs. Chief Secy., Union
Territory of Goa, (1990) 1 SCC 95) as under:
.
24. With deep concern, we may point out
that the organised activities of the
underworld and the clandestine smuggling
of narcotic drugs and psychotropic
substances into this country and illegal
trafficking in such drugs and substances
have led to drug addiction among a sizeable
section of the public, particularly the
adolescents and students of both sexes and
the menace has assumed serious and
alarming proportions in the recent years.
Therefore, in order to effectively control
and eradicate this proliferating and
booming devastating menace, causing
deleterious effects and deadly impact on the
society as a whole, Parliament in its
wisdom, has made effective provisions by
introducing Act 81 of 1985 specifying
mandatory minimum imprisonment and
fine.
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the
person accused of offences under the NDPS Act
should not be released on bail during trial unless
the mandatory conditions provided in Section 37,
namely,
(i) there are reasonable grounds for
believing that the accused is not guilty of
such offence; and
(ii) that he is not likely to commit any
offence while on bail are satisfied. The
High Court has not given any justifiable
reason for not abiding by the aforesaid
P a g e | 11
Neutral Citation No. ( 2024:HHC:9219 )
mandate while ordering the release of the
respondent accused on bail. Instead of
attempting to take a holistic view of the
harmful socio-economic consequences
.
and health hazards which would
accompany trafficking illegally in
dangerous drugs, the court should
implement the law in the spirit with which
Parliament, after due deliberation, has
amended."
20. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also
subject to the limitation placed by Section 37 which
commences with the non-obstante clause. The
operative part of the said section is in the negative form
prescribing the enlargement of bail to any person
accused of commission of an offence under the Act
unless twin conditions are satisfied. The first condition
is that the prosecution must be given an opportunity to
oppose the application, and the second is that the Court
must be satisfied that there are reasonable grounds for
believing that he is not guilty of such an offence. If
either of these two conditions is not satisfied, the ban
for granting bail operates.
21. The expression "reasonable grounds" means something
more than prima facie grounds. It contemplates
substantial probable causes for believing that the
accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision
requires the existence of such facts and circumstances
as are sufficient in themselves to justify satisfaction
that the accused is not guilty of the alleged offence. In
the case on hand, the High Court seems to have
completely overlooked the underlying object of Section
37 that in addition to the limitations provided under the
CrPC, or any other law for the time being in force,
regulating the grant of bail, its liberal approach in the
P a g e | 12
Neutral Citation No. ( 2024:HHC:9219 )
matter of bail under the NDPS Act is indeed uncalled
for."
14. A similar view was taken in Union of India v. Mohd.
.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237 wherein it was observed at page 110:
"21. Under Section 37(1)(b)(ii), the limitations on the grant of
bail for offences punishable under Sections 19, 24 or 27-A
and also for offences involving a commercial quantity are:
(i) The Prosecutor must be given an opportunity
to oppose the application for bail; and
(ii) There must exist "reasonable grounds to
r believe" that : (a) the person is not guilty of such
an offence; and (b) he is not likely to commit any
offence while on bail.
22. The standard prescribed for the grant of bail is
"reasonable ground to believe" that the person
is not guilty of the offence. Interpreting the standard of
"reasonable grounds to believe", a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri)
505], held that : (SCC pp. 801-02, paras 7-8 & 10-11)
"7. The expression used in Section 37(1)(b)(ii) is
"reasonable grounds". The expression means
something more than prima facie grounds. It
connotes substantial probable causes for believing
that the accused is not guilty of the offence charged
and this reasonable belief contemplated in turn
points to the existence of such facts and
circumstances as are sufficient in themselves to
justify the recording of satisfaction that the accused
is not guilty of the offence charged.
8. The word "reasonable" has in law the prima
facie meaning of reasonable in regard to those
circumstances of which the actor, called on to act
P a g e | 13
Neutral Citation No. ( 2024:HHC:9219 )
reasonably, knows or ought to know. It is difficult
to give an exact definition of the word
"reasonable".
.
'7. ... Stroud's Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an
exact definition of the word "reasonable".
Reason varies in its conclusions according to the
idiosyncrasy of the individual, and the times and
circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds
now like the jingling of a child's toy.'
[See MCD v. Jagan Nath Ashok
Kumar [MCD v. Jagan Nath Ashok Kumar, (1987) 4
SCC 497], SCC p. 504, para 7 and Gujarat Water
Supply & Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd. [Gujarat Water Supply &
Sewerage Board v. Unique Erectors (Gujarat) (P)
Ltd., (1989) 1 SCC 532]]
***
10. The word "reasonable" signifies "in
accordance with reason". In the ultimate
analysis, it is a question of fact, whether a
particular act is reasonable or not depends on the
circumstances in a given situation. (See Municipal
Corpn. of Greater Mumbai v. Kamla Mills
Ltd. [Municipal Corpn. of Greater Mumbai v. Kamla
Mills Ltd. (2003) 6 SCC 315]
11. The court while considering the application for
bail with reference to Section 37 of the Act is not
called upon to record a finding of not guilty. It is
for the limited purpose essentially confined to
the question of releasing the accused on bail that
the court is called upon to see if there are
reasonable grounds for believing that the accused
is not guilty and records its satisfaction about the
existence of such grounds. But the court has not
to consider the matter as if it is pronouncing a
P a g e | 14
Neutral Citation No. ( 2024:HHC:9219 )
judgment of acquittal and recording a finding of
not guilty."
(emphasis supplied)
.
23. Based on the above precedent, the test which the
High Court and this Court are required to apply while
granting bail is whether there are reasonable grounds
to believe that the accused has not committed an
offence and whether he is likely to commit any offence
while on bail. Given the seriousness of offences
punishable under the NDPS Act and in order to curb the
menace of drug trafficking in the country, stringent
parameters for the grant of bail under the NDPS Act
have been prescribed."
15. This position was reiterated in Narcotics Control Bureau
v. Mohit Aggarwal, 2022 SCC OnLine SC 891 wherein it was observed:
"11. It is evident from a plain reading of the non-obstante
clause inserted in sub-section (1) and the conditions
imposed in sub-section (2) of Section 37 that there are
certain restrictions placed on the power of the Court when
granting bail to a person accused of having committed an
offence under the NDPS Act. Not only are the limitations
imposed under Section 439 of the Criminal Procedure Code,
1973 to be kept in mind, but the restrictions placed under
clause (b) of sub-section (1) of Section 37 are also to be
factored in. The conditions imposed in subsection (1) of
Section 37 are that (i) the Public Prosecutor ought to be given
an opportunity to oppose the application moved by an
accused person for release and (ii) if such an application is
opposed, then the Court must be satisfied that there are
reasonable grounds for believing that the person accused is
not guilty of such an offence. Additionally, the Court must be
satisfied that the accused person is unlikely to commit any
offence while on bail.
12. The expression "reasonable grounds" has come up for
discussion in several rulings of this Court. In "Collector of
P a g e | 15
Neutral Citation No. ( 2024:HHC:9219 )
Customs, New Delhi v. Ahmadalieva Nodira" (2004) 3 SCC 549,
a decision rendered by a Three Judges Bench of this Court, it
has been held thus:--
.
"7. The limitations on granting of bail come in only when
the question of granting bail arises on merits. Apart from
the grant of opportunity to the Public Prosecutor, the
other twin conditions which really have relevance so far
as the present accused-respondent is concerned, are the
satisfaction of the court that there are reasonable grounds
for believing that the accused is not guilty of the alleged
offence and that he is not likely to commit any offence
while on bail. The conditions are cumulative and not
alternative. The satisfaction contemplated regarding the
accused being not guilty has to be based on reasonable
grounds. The expression "reasonable grounds" means
something more than prima facie grounds. It contemplates
substantial probable causes for believing that the accused is
not guilty of the alleged offence. The reasonable belief
contemplated in the provision requires the existence of such
facts and circumstances as are sufficient in themselves to
justify satisfaction that the accused is not guilty of the alleged
offence."
[emphasis added]
13. The expression "reasonable ground" came up for
discussion in "State of Kerala v. Rajesh" (2020) 12 SCC 122 and
this Court has observed as below:
"20. The expression "reasonable grounds" means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence. The
reasonable belief contemplated in the provision requires the
existence of such facts and circumstances as are sufficient in
themselves to justify satisfaction that the accused is not guilty
of the alleged offence. In the case on hand, the High Court
seems to have completely overlooked the underlying
object of Section 37 that in addition to the limitations
provided under the CrPC, or any other law for the time
P a g e | 16
Neutral Citation No. ( 2024:HHC:9219 )
being in force, regulating the grant of bail, its liberal
approach in the matter of bail under the NDPS Act is
indeed uncalled for."[emphasis added]
.
14. To sum up, the expression "reasonable grounds" used in
clause (b) of Sub-Section (1) of Section 37 would mean
credible, plausible and grounds for the Court to believe that
the accused person is not guilty of the alleged offence. For
arriving at any such conclusion, such facts and
circumstances must exist in a case that can persuade the
Court to believe that the accused person would not have
committed such an offence. Dove-tailed with the aforesaid
satisfaction is an additional consideration that the accused
person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an
application for bail in the context of Section 37 of the Act, the
Court is not required to record a finding that the accused
person is not guilty. The Court is also not expected to weigh
the evidence for arriving at a finding as to whether the
accused has committed an offence under the NDPS Act or not.
The entire exercise that the Court is expected to undertake at
this stage is for the limited purpose of releasing him on bail.
Thus, the focus is on the availability of reasonable grounds
for believing that the accused is not guilty of the offences
that he has been charged with and that he is unlikely to
commit an offence under the Act while on bail."
16. In the present case, there is sufficient material at this
stage to show that the petitioner was found in possession of the
commercial quantity of charas.
17. It was submitted that the independent witnesses did not
support the prosecution case and the case against the petitioner is
false. This submission cannot be accepted. It was rightly submitted
on behalf of the State that independent witnesses turning hostile is
P a g e | 17
Neutral Citation No. ( 2024:HHC:9219 )
not sufficient to doubt the prosecution case. It was laid down in
Rizwan Khan Versus State of Chhattisgarh (2020) 9 SCC 627, that the
.
prosecution case cannot be discarded because independent
witnesses had turned hostile when the testimonies of the official
witnesses were reliable. It was observed:
"8.2 Having gone through the entire evidence on record and
the findings recorded by the courts below, we are of the
opinion that in the present case, the prosecution has been
successful in proving the case against the accused by
examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is
true that all the aforesaid witnesses are police officials and
two independent witnesses who were panchnama witnesses
had turned hostile. However, all the aforesaid police
witnesses are found to be reliable and trustworthy. All of
them have been thoroughly cross-examined by the defence.
There is no allegation of any enmity between the police
witnesses and the accused. No such defence has been taken in
the statement under Section 313, Cr.P.C. There is no law that
the evidence of police officials unless supported by
independent evidence, is to be discarded and/or unworthy of
acceptance."
18. It was held by this Court in Budh Ram Versus State of H.P.
2020 Cri.L.J.4254 that independent witnesses turning hostile is no
reason to discard the prosecution version. It was observed:
"Though the independent witnesses, PW-1 Rajiv Kumar and
PW-2 Hira Lal, were declared hostile and were cross-
examined, however, the law in respect of appreciating the
testimonies of such witnesses is well settled. Hon'ble Apex
Court in titled Sudru versus State of Chhattisgarh, (2019) 8 SCC
333 relying upon Bhajju versus State of M.P.,2010 4 SCC 327,
has again reiterated the well-settled principle that evidence
P a g e | 18
Neutral Citation No. ( 2024:HHC:9219 )
of hostile witness can be relied upon by the prosecution
version. Merely because a witness has turned hostile, the
same does not render his evidence or testimony as
inadmissible in trial and such conviction can be based upon
.
such testimony, if it is corroborated by other reliable
evidence.
In a case titled Raja and Others versus State of Karnataka,
(2016) 10 SCC 506 the Apex Court observed that the evidence
of a hostile witness cannot be altogether discarded and as
such it is open for the Court to rely on the dependable part of
such evidence which stands duly corroborated by other
reliable evidence on record.
In a case titled Selvaraj @ Chinnapaiyan versus State
represented by Inspector of Police, (2015) 2 SCC 662 the Apex
Court has observed that in a situation/case, wherein, the
witness deposes false in his/her cross-examination, that
itself is not sufficient to outrightly discard his/her testimony
in examination-in-chief. The Court held that a conviction
can be recorded believing the testimony of a such witness
given in examination-in-chief, however, such evidence is
required to be examined with great caution.
In Ashok alias Dangra Jaiswal versus State of Madhya Pradesh,
(2011) 5 SCC 123, has held as under:-
"the seizure witness turning hostile may not be very
significant by itself, as it is not an uncommon
phenomenon in criminal trial particularly in cases relating
to NDPS Act."
19. In the present case, the statements of the independent
witnesses are to be appreciated with other evidence at the time of
the conclusion of the trial and the mere fact that the independent
witnesses have not supported the prosecution case cannot mean
that the petitioner was not found in possession of the commercial
quantity of the charas.
P a g e | 19
Neutral Citation No. ( 2024:HHC:9219 )
20. It was submitted that the right of the speedy trial of the
petitioner is being violated. This cannot be accepted. The challan
.
was filed before the Court on 20.02.2023. The charge was framed by
the Court on 30.05.2023. The statements of 7 witnesses have been
recorded and the matter is listed for the prosecution evidence on
06.09.2024 and 07.09.2024. Hence, in these circumstances, it
cannot be said that there is any delay in the progress of the trial
justifying the grant of the bail.
21. In Bimla Devi (supra) and Ankur Chaudhary (supra) the
Court found that the right of the speedy trial of the petitioner was
being violated. Therefore, the accused was granted bail due to the
violation of the right of a speedy trial. In the present case, the
prosecution has already examined 7 witnesses and the matter is
now listed on two consecutive dates for the examination of the
prosecution witnesses. Therefore, it cannot be said that the trial of
the petitioner is not likely to conclude soon.
22. Thus, the petitioner is unable to satisfy that he has not
committed the offence alleged against him and he cannot be
granted bail.
P a g e | 20
Neutral Citation No. ( 2024:HHC:9219 )
23. Consequently, the present petition fails sand the same is
dismissed.
.
24. 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.
27th September, 2024
r to (Rakesh Kainthla)
Judge
(Nikita)
