Himachal Pradesh High Court
Kunal Kumar vs State Of H.P on 7 July, 2025
Neutral Citation No. ( 2025:HHC:21394 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1334 of 2025.
Reserved on: 01.07.2025
Date of Decision: 07.07.2025
Kunal 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. Bhupinder Pathania, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy 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 in
FIR No. 05 of 2024, dated 26.01.2024, registered at Police Station
Parwanoo, District Solan, H.P., for the commission of offences
punishable under Sections 21 & 29 of the Narcotic Drugs and
Psychotropic Substances Act (hereinafter referred to as ND&PS
Act).
2. It is asserted that, as per the prosecution, the police
checked the bus bearing registration No. CH-01GA-8195 and
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2025:HHC:21394 )
recovered 6.21 grams of heroin from the carry bag being carried by
the petitioner. The petitioner has been in judicial custody since
26.01.2024. The petitioner was travelling in a public transport and
no passenger was cited as a witness. The petitioner is a taxi driver
by profession. There is no evidence linking the petitioner with the
transportation of the contraband. The quantity of heroin stated to
have been recovered from the possession of the petitioner is
intermediate, and the rigours of Section 37 of the NDPS Act do not
apply to the present case. The prosecution has cited 26 witnesses.
The charge has not been framed so far, and it will take some time to
conclude the trial. The co-accused Prakash Chand and Parveen
Garg have already been released on bail. The petitioner would abide
by all the terms and conditions which the court may impose; hence
the petition.
3. The petition is opposed by filing a status report
asserting that the police party received a secret information on
26.01.2024 regarding the transportation of heroin by Kunal and
Prakash, who were travelling in the bus bearing registration No.
CH-01GA-8145. The police completed the formalities and
intercepted the bus at 6:50 PM. The police checked the passengers
in the presence of the driver and the conductor. The petitioner was
occupying seat No. 34 and had a carry bag with him. Prakash Chand
Neutral Citation No. ( 2025:HHC:21394 )
was occupying seat No. 35. The police checked the petitioner's carry
bag and found 6.21 grams of heroin. The police seized the heroin
and arrested the petitioner and Prakash Chand. The heroin was sent
to SFSL, and the result of the analysis confirmed it to be heroin. FIR
No. 191 of 2019, dated 10.09.2019, for the commission of an offence
punishable under Section 21 of the ND&PS Act, and FIR No. 221 of
2022, dated 30.10.2022, for the commission of offences punishable
under Sections 21 & 29 of the ND&PS Act are registered against the
petitioner in Police Station Sadar, Solan. The challan has been filed
before the Court and is listed before the learned Additional Sessions
Judge, Solan, on 30.07.2025 for consideration on charge.
4. I have heard Mr. Bhupinder Pathania, learned counsel
for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate
General for the respondent/State.
5. Mr. Bhupinder Pathania, learned counsel for the
petitioner, submitted that the petitioner is innocent and was falsely
implicated. The charge has not been framed so far. The co-accused
have been released on bail, and the petitioner is entitled to bail on
the principle of parity; hence, he prayed that the present petition be
allowed and the petitioner be released on bail.
Neutral Citation No. ( 2025:HHC:21394 )
6. Mr. Ajit Sharma, learned Deputy Advocate General for
the respondent/State, submitted that the petitioner was found in
possession of a carry bag containing heroin. There is no parity
between the petitioner and the co-accused; hence, he prayed that
the present petition be dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The parameters for granting bail were considered by
the Hon'ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768:
2024 SCC OnLine SC 974, wherein it was observed at page 783:
"Relevant parameters for granting bail
26. While considering as to whether bail ought to be granted
in a matter involving a serious criminal offence, the Court
must consider relevant factors like the nature of the
accusations made against the accused, the manner in which
the crime is alleged to have been committed, the gravity of
the offence, the role attributed to the accused, the criminal
antecedents of the accused, the probability of tampering of
the witnesses and repeating the offence, if the accused are
released on bail, the likelihood of the accused being
unavailable in the event bail is granted, the possibility of
obstructing the proceedings and evading the courts of justice
and the overall desirability of releasing the accused on bail.
[Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P.,
(2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra
Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh
Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri)
1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009)
14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar
Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis
Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru
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Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16
SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State
(NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018)
12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh
Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1
SCC (Cri) 558] .]
9. This position was reiterated in Ramratan v. State of M.P.,
2024 SCC OnLine SC 3068, wherein it was observed as under:-
"12. The fundamental purpose of bail is to ensure the
accused's presence during the investigation and trial. Any
conditions imposed must be reasonable and directly related
to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered to
exercise its discretion to impose "any condition" for the
grant of bail under Sections 437(3) and 439(1)(a) CrPC, the
discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the presence of
the accused and ensure that the liberty of the accused is not
misused to impede the investigation, overawe the witnesses
or obstruct the course of justice. The relevant observations
are extracted below:
"14. The language of Section 437(3) CrPC, which uses the
expression "any condition ... otherwise in the interest of
justice" has been construed in several decisions of this
Court. Though the competent court is empowered to exercise
its discretion to impose "any condition" for the grant of bail
under Sections 437(3) and 439(1)(a) CrPC, the discretion of
the court has to be guided by the need to facilitate the
administration of justice, secure the presence of the accused
and ensure that the liberty of the accused is not misused to
impede the investigation, overawe the witnesses or obstruct
the course of justice. Several decisions of this Court have
dwelt on the nature of the conditions which can
legitimately be imposed both in the context of bail and
anticipatory bail." (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570,
this Court discussed the scope of the discretion of the Court
Neutral Citation No. ( 2025:HHC:21394 )
to impose "any condition" on the grant of bail and observed
in the following terms:--
"15. The words "any condition" used in the provision
should not be regarded as conferring absolute power on a
court of law to impose any condition that it chooses to
impose. Any condition has to be interpreted as a reasonable
condition acceptable in the facts permissible in the
circumstance, and effective in the pragmatic sense, and
should not defeat the order of grant of bail. We are of the
view that the present facts and circumstances of the case
do not warrant such an extreme condition to be
imposed." (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the bail application and
observed:
"4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the realisation
of disputed dues. It is open to a court to grant or refuse
the prayer for anticipatory bail, depending on the facts
and circumstances of the particular case. The factors to be
taken into consideration while considering an application for
bail are the nature of the accusation and the severity of the
punishment in the case of conviction and the nature of the
materials relied upon by the prosecution; reasonable
apprehension of tampering with the witnesses or
apprehension of threat to the complainant or the witnesses;
the reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his
abscondence; character, behaviour and standing of the
accused; and the circumstances which are peculiar or the
accused and larger interest of the public or the State and
similar other considerations. A criminal court, exercising
jurisdiction to grant bail/anticipatory bail, is not expected
to act as a recovery agent to realise the dues of the
complainant, and that too, without any trial." (Emphasis
supplied)
Neutral Citation No. ( 2025:HHC:21394 )
10. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
11. The present petition has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
12. It is undisputed that the petitioner had earlier filed a
bail petition, which was registered as Cr.MP(M) No. 2362 of 2024,
which was dismissed on 03.01.2025. It was held in the State of
Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC
605, that once a bail application has been dismissed, a subsequent
bail application can only be considered if there is a change of
circumstances. It was observed:
"Once that application was rejected, there was no question of
granting a similar prayer. That is virtually overruling the
earlier decision without there being a change in the fact
situation. And when we speak of change, we mean a
substantial one, which has a direct impact on the earlier
decision and not merely cosmetic changes, which are of little
or no consequence. Between the two orders, there was a gap
of only two days, and it is nobody's case that during these
two days, drastic changes had taken place, necessitating the
release of the respondent on bail. Judicial discipline,
propriety and comity demanded that the impugned order
should not have been passed, reversing all earlier orders,
including the one rendered by Puranik, J., only a couple of
days before, in the absence of any substantial change in the
fact situation. In such cases, it is necessary to act with
restraint and circumspection so that the process of the Court
is not abused by a litigant and an impression does not gain
ground that the litigant has either successfully avoided one
Neutral Citation No. ( 2025:HHC:21394 )
judge or selected another to secure an order which had
hitherto eluded him.
13. Similarly, it was held in Kalyan Chandra Sarkar v. Rajesh
Ranjan @ Pappu Yadav (2004) 7 SCC 528, that where an earlier bail
application has been rejected, the court has to consider the
rejection of the earlier bail application and then consider why the
subsequent bail application should be allowed. It was held:
"11. In regard to cases where earlier bail applications have
been rejected there is a further onus on the court to consider
the subsequent application for grant of bail by noticing the
grounds on which earlier bail applications have been rejected
and after such consideration, if the court is of the opinion
that bail has to be granted then the said court will have to
give specific reasons why in spite of such earlier rejection the
subsequent bail application should be granted."
14. It was submitted that there is a delay in the progress of
the trial. This is duly supported by the status report, in which it was
mentioned that the matter is listed before the learned Trial Court on
03.07.2025 for the consideration of the charge. The fact that the
learned Trial Court has failed to frame charges despite the lapse of
one year supports the plea of the petitioner that there is a delay in
the progress of the trial.
15. 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 the right of speedy trial in every criminal proceeding is an
unalienable right of the accused. It was observed on page 126:
Neutral Citation No. ( 2025:HHC:21394 )
"22. It is, therefore, well settled that the right to a speedy
trial in all criminal prosecutions is an inalienable right under
Article 21 of the Constitution. This right applies not only to
the actual proceedings in court but also includes within its
sweep the preceding police investigations as well. The right
to a speedy trial extends equally to all criminal prosecutions
and is not confined to any particular category of cases.
16. 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 on 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
Neutral Citation No. ( 2025:HHC:21394 )
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 a 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
a 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."
Neutral Citation No. ( 2025:HHC:21394 )
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."
17. It was held in Shaheen Welfare Association. 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."
18. 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
Neutral Citation No. ( 2025:HHC:21394 )
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] )."
19. It was laid down in Mohd. Muslim v. State (NCT of Delhi),
2023 SCC OnLine SC 352 that the right to a 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
Neutral Citation No. ( 2025:HHC:21394 )
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."
20. The Court highlighted the effects of pre-trial detention
and the importance of a 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 wreaked on the individual is
immeasurable. Jails are overcrowded, and their living
conditions, more often than not, are 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
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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, and
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/Sobecki_sk
lad.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."
21. It was laid down by the Hon'ble Supreme Court in Javed
Gulam Nabi Shaikh Vs. State of Maharashtra and Anr. in Criminal
Neutral Citation No. ( 2025:HHC:21394 )
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 a 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-emphasised the right to a speedy trial and
further held that an accused, facing a prolonged trial, has no
option: "The State or complainant prosecutes him. It is,
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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, it 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."
22. 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 the 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."
23. 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 the
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conclusion of the trial would infringe the right of an accused
guaranteed under Article 21 of the Constitution.
8. It is not for nothing that 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."
24. Thus, the petitioner is entitled to bail because of a
violation of his right to a speedy trial.
25. The petitioner was found in possession of 6.21 grams of
heroin, which is slightly more than a small quantity. Keeping in
view the quantity of heroin found in possession of the petitioner,
his further detention is not justified.
26. It was submitted that the petitioner has criminal
antecedents. It was laid down by the Hon'ble Supreme Court in
Ayub Khan v. State of Rajasthan, 2024 SCC OnLine SC 3763: 2024:
INSC:994 that the criminal antecedents may not be a reason to deny
bail to the accused in case of his long incarceration. It was
observed:
"10. The presence of the antecedents of the accused is only
one of the several considerations for deciding the prayer for
bail made by him. In a given case, if the accused makes out a
Neutral Citation No. ( 2025:HHC:21394 )
strong prima facie case, depending upon the fact situation
and period of incarceration, the presence of antecedents may
not be a ground to deny bail. There may be a case where a
Court can grant bail only on the grounds of long
incarceration. The presence of antecedents may not be
relevant in such a case. In a given case, the Court may grant
default bail. Again, the antecedents of the accused are
irrelevant in such a case. Thus, depending upon the peculiar
facts, the Court can grant bail notwithstanding the existence
of the antecedents."
27. Consequently, the present petition is allowed, and the
petitioner is ordered to be released on bail in the sum of
₹1,00,000/- with one surety of the like amount to the satisfaction
of the learned Trial Court. While on bail, the petitioner 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 on each and every
hearing 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 the intended visit to the SHO concerned,
the Police Station concerned and the Trial Court;
(IV) The petitioner will surrender his passport, if any, to
the Court; and
(V) 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.
Neutral Citation No. ( 2025:HHC:21394 )
28. 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.
29. The petition stands accordingly disposed of. A copy of
this order be sent to the Jail Superintendent, Model Central Jail,
Kanda, H.P. , and the learned Trial Court by FASTER.
30. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever, on
the case's merits.
31. 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, the same may
be ascertained from the official website of this Court.
(Rakesh Kainthla)
Judge
07th July, 2025
(Saurav pathania)
