Himachal Pradesh High Court
Date Of Decision: 26.12.2024 vs The State Of Himachal Pradesh on 26 December, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:15911
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.2832 of 2024
Date of Decision: 26.12.2024
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Dola Singh ...Petitioner
Versus
The State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner: Mr. Vinod Kumar Sharma, Advocate.
For the Respondent: Mr. Anup Rattan, Advocate General
with Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C.Verma, Additional
Advocate Generals and Mr. Ravi
Chauhan, Deputy Advocate General.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely, Dola Singh, who is behind the
bars since 22.04.2023, 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. 53 of
2023, dated 22.04.2023, under Section 20 of the NDPS Act,
registered at police Station, Banjar (Seraj), District Kullu, Himachal
Pradesh.
2. Pursuant to order dated 12.12.2024, respondent-State
has filed status report and ASI Chaman Lal has come present with
the record. Record perused and returned.
1
Whether reporters of the local papers may be allowed to see the judgment?
2 2024:HHC:15911
3. Close scrutiny of the status report/record reveals that
on 22.04.2023, at 4.05 PM, one person coming from Fagu pull on
foot got perplexed after having seen the police and tried to take ‘U’
turn. Police after having noticed suspicious activity of the person
concerned, stopped him for checking and allegedly recovered
commercial quantity of contraband i.e. 2 kg 5 grams charas from
the bag being carried by him at relevant time in the presence of the
independent witnesses. Since, no plausible explanation ever came
to be rendered on record qua possession of aforesaid commercial
quantity of contraband, police after having completed necessary
codal formalities, lodged the FIR, as detailed hereinabove and
arrested him on 22.04.2023 and since then, bail petitioner is
behind the bars. Since challan in the case stands filed in the
competent Court of law and nothing remains to be recovered from
the bail petitioner, he has approached this Court in the instant
proceedings for grant of regular bail.
4. Prior to filing the petition at hand, petitioner had
approached this Court by way of Cr.MP (M) No.2094 of 2024,
however same was dismissed as withdrawn on 30.09.2024 with
the direction to the Court below to conclude the trial expeditiously
on or before 02.12.2024. While passing aforesaid order, this Court
specifically observed in the order, as detailed hereinabove, that in
case trial is not concluded on or before 02.12.2024, this Court shall
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be constrained to consider the prayer made on behalf of the
petitioner for grant of bail. In the aforesaid background, petitioner
has approached this Court in the instant proceedings for grant of
bail on the ground of inordinate delay in conclusion of the trial.
5. While fairly admitting factum with regard to filing of the
challan in the competent Court of law, Mr. Vishal Panwar, 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. He states that since five
prosecution witnesses already stand examined and for recording
the statements of remaining witnesses Court below has already
fixed the matter on 29.03.2025, prayer made on behalf of the
petitioner for grant of bail on the ground of inordinate delay in
conclusion of trial deserves to be rejected. While making this
Court peruse the record, learned Additional Advocate General
states that there is overwhelming evidence adduced on record
suggestive of the fact that bail petitioner is a drug peddler and as
such, in the event of his 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.
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6. Having heard learned counsel for the parties and
perused material available on record, this Court is not persuaded
to agree with learned counsel for the petitioner that petitioner has
been falsely implicated. Material adduced on record clearly reveals
that commercial quantity of contraband came to be recovered from
the conscious possession of the petitioner in the presence of
independent witnesses. However, having taken not of the fact that
bail petitioner is behind the bars for approximately two years and
till date, prosecution has been able to examine five witnesses,
coupled with the fact that this Court, while disposing of the earlier
bail petition having been filed by the petitioner, had specifically
directed the Court below to conclude the trial on or before
02.12.2024, prayer made on behalf of the petitioner for grant of bail
on the ground of inordinate delay in conclusion of trial deserves to
be considered.
7. 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 possession of the bail
petitioner, 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
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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 of
contraband. In the instant case, there is nothing to suggest that in
past, case under NDPS Act stands registered against the petitioner
and as such, mere recovery of contraband, which is yet to be
proved in accordance with law, cannot be sufficient to conclude
that in the event of his being enlarged on bail, petitioner would
again indulge in these activities. Though, aforesaid aspect of the
matter is required to be considered and decided by learned trial
court, in the totality of evidence collected on record by investigating
agency, but keeping in view the aforesaid aspects of the matter,
this court sees no reason to let the bail petitioner incarcerate in jail
for an indefinite period during trial, especially when he has already
suffered for one year eight months.
8. Leaving everything aside, this Court cannot lose sight
of the fact that bail-petitioner is behind bars for more than one year
eight months and till today, prosecution has been able to examine
five witnesses, out of 12 prosecution witnesses. Though, status
report reveals that for recording the statements of prosecution
witnesses, Court below has fixed the matter for 29.03.2025, but
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this Court having taken note of the fact that it took more than one
year for Court below to examine the five witnesses, it 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.
9. 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).”
10. 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
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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.
11. 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.
12. 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.
13. 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
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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 as no further progress in the trial.
14. 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.
15. 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.
16. In similar circumstances, in Cr.MP(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
9 2024:HHC:15911
enlargement on bail of the person, who was apprehended with
1.996 kg of charas.
17. 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
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
10 2024:HHC:15911
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
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
11 2024:HHC:15911expeditious 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.”
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.
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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,
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
13 2024:HHC:15911grounds 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
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
14 2024:HHC:15911
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
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.”
18. 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
guaranteed 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.
15 2024:HHC:15911
19. 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.
20. 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.
21. 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
16 2024:HHC:15911
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.
22. 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.
23. 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 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
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(d) He shall not leave the territory of India without the prior
permission of the Court.
24. It is clarified that if the petitioner misuses the liberty or
violates any of the conditions imposed upon him, the investigating
agency shall be free to move this Court for cancellation of the bail.
25. 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.
26. The 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.
(Sandeep Sharma)
Judge
December 26, 2024
(shankar)