Himachal Pradesh High Court
Mangat Ram vs State Of Himachal Pradesh on 23 April, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.506 of 2025
Date of Decision: 23.04.2025
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Mangat Ram ...Petitioner
Versus
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. Saurav Rattan, 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, Mangat Ram, who is behind
the bars since 07.03.2024 has approached this Court in the
instant proceedings filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, for grant of regular bail in case
FIR No. 16 of 2024, dated 07.03.2024, under Section 20 of the
NDPS Act, registered at Police Station Shillai, District Sirmour,
Himachal Pradesh. Respondent-State has filed status report and
SI Mohinder Singh, 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
2. Close scrutiny of the status report/record made
available to this Court reveals that on 07.03.2024 police after
having received secret information that petitioner herein indulges
in illegal trade of narcotics, constituted a raiding party and
proceeded towards Kando Dhar. While police party was at a
distance of 1 Km from Kando Dhar, one person carrying
rucksack (Pithu) was seen coming on foot. Since person coming
on foot got perplexed after seeing the police and tried to flee from
the spot, on suspicion, police apprehended him. After associating
independent witnesses, police allegedly conducted personal
search of the person, namely Mangat Ram i.e. bail petitioner
herein as well as rucksack (Pithu) being carried by him at
relevant time and allegedly, recovered 1.093 Kgs charas. 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 the bail petitioner
and since then he is behind the bars. Since investigation in the
case is complete and nothing remains to be recovered from bail
petitioner, coupled with the fact that two independent witnesses
associated by the police at the time of recovery have turned
hostile, prayer has been made on behalf of the petitioner for
grant of regular bail.
3
3. While fairly admitting factum with regard to filing of
the Challan in the competent Court of law, Mr. Rajan Kahol,
learned Additional Advocate General, states 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. Learned Additional
Advocate General states that bare perusal of the statements
made by two independent witnesses nowhere suggests that they
have turned hostile, rather they have categorically admitted their
presence on the spot. While making this Court peruse material
adduced on record, learned Additional Advocate General states
that there is overwhelming evidence on record suggestive of the
fact that commercial quantity of contraband was recovered from
the conscious possession of the bail petitioner and as such, it
would be too pre-mature at this stage to conclude that bail
petitioner has been falsely implicated. Learned Additional
Advocate General states that in the event of petitioner’s being
enlarged on bail, he may not only flee from justice, but may
indulge in these activities again and as such, prayer made on
behalf of the petitioner for grant of bail deserves outright
rejection. Learned Additional Advocate General further states
that since statements of material prosecution witnesses have
been already recorded, it cannot be said that there is inordinate
delay in conclusion of trial.
4
4. 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, especially when there is material on
record to suggest that contraband was recovered from the
conscious possession of the petitioner in the presence of
independent witnesses. However, having taken note of the fact
that bail petitioner is behind the bars for more than one year and
till date, prosecution has been able to examine only four
witnesses out of 18, 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.
5. Though, learned Additional Advocate General
vehemently argued that there is no delay in conclusion of trial,
but since it is quite apparent from the record that in one year
prosecution has been able to examine only four witnesses, this
Court has reasons to believe and presume that considerable time
is likely to be consumed in conclusion of trial and during this
period incarceration of bail petitioner in jail would amount to pr-
trial conviction.
6. 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 conscious
possession of the petitioner, but bare perusal of Section 37
5
nowhere suggests that there is complete bar under aforesaid
provision of law to grant bail in cases involving commercial
quantity, rather bare reading of section 37 clearly reveals that
Court can proceed to consider the prayer made, if any, for grant
of bail in the cases involving commercial quantity, but for that
purpose, Court is to first afford opportunity of hearing to the
public prosecutor and in case it is satisfied that person
concerned has been falsely implicated and there is no likelihood
of his indulging in illegal activities again, it can proceed to grant
bail in the cases involving commercial quantity. 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.
7. By now, it is well settled that speedy trial is legal
right of the accused and one cannot be made to suffer indefinitely
6
for delay in trial and as such, this Court sees no reason to keep
the bail petitioner behind the bars for indefinite period during
trial. Delay in trial has been held to be in violation of the right
guaranteed under Article 21 of Constitution of India. Reliance is
placed on judgment passed by the Hon’ble Apex Court in case
titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2
SCC 731, relevant para whereof has been reproduced herein
below:-
“11. This Court has consistently recognised the right of the accused
for a speedy trial. Delay in criminal trial has been held to be in
violation of the right guaranteed to an accused under Article 21 of
the Constitution of India. (See: Supreme Court Legal Aid Committee
v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union
of India, (1996) 2 SCC 616) Accused, even in cases under TADA,
have been released on bail on the ground that they have been in jail
for a long period of time and there was no likelihood of the
completion of the trial at the earliest. (See: Paramjit Singh v. State
(NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of
Maharashtra, (2005) 11 SCC 569).”
8. Hon’ble Apex Court having taken note of inordinate
delay in conclusion of trial in similar facts ordered for
enlargement of accused on bail in Nitish Adhikary @ Bapan v.
The State of West Bengal, Special Leave to Appeal (Crl.) No.
5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v.
Union Territory of Jammu and Kashmir, Special Leave to
Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were
also framed under Narcotic Drugs and Psychotropic Substances
Act and were behind the bars for approximately two years and
7
there was no likelihood of conclusion of trial in near future,
subject to certain conditions.
9. Placing reliance upon aforesaid judgments, a Co-
ordinate Bench of this Court in CrMP(M) No. 1328 of 2022 titled
Roop Singh v. State of Himachal Pradesh, decided on
6.9.2022, also ordered for enlargement of an accused, who was
allegedly apprehended carrying commercial quantity of Tramadol,
on the ground of delay in conclusion of trial.
10. Apart from above judgment, Co-ordinate Bench of
this Court while granting bail vide order dated 22.3.2021 in
CrMP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal
Pradesh, also placed reliance upon a judgment delivered by a
three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit
Singh Moni v. State of Himachal Pradesh, decided on
12.10.2020, wherein petitioner was allegedly found in
possession of 3285 grams of charas from a vehicle, wherein four
other persons were sitting.
11. Learned Counsel appearing for the petitioner, to
substantiate his plea for enlarging the petitioner on bail, has
referred order dated 12.10.2020 passed by a three judges Bench
of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled
Amrit Singh Moni v. State of Himachal Pradesh, whereby
petitioner therein, facing trial for recovery of 3.285 kilograms
charas from a vehicle, alongwith four other persons, was
8
enlarged on bail, for having been in detention for 2 years and 7
months, as till then out of 14 witnesses, 7 witnesses were yet to
be examined and last witness was examined in February, 2020
and, thereafter, there was no further progress in the trial.
12. 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.
13. The learned Counsel appearing for the petitioner
submits that in Mohit Aggarwal, huge commercial quantity of 20
kilograms of Tramadol, against minimum commercial quantity of
250 grams, was recovered, whereas, in the present case, the
recovered quantity is little more than the commercial quantity.
14. 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
9
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
herein below, which read as under:
“7. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, we are inclined to
exercise our discretion in favour of the appellant herein keeping in
mind the following aspects:
(i) The appellant is in jail as an under-trial prisoner past four years;
(ii) Till this date, the trial court has not been able to even proceed to
frame charge; and
(iii) As pointed out by the counsel appearing for the State as well as
NIA, the prosecution intends to examine not less than eighty
witnesses.
8. Having regard to the aforesaid, we wonder by what period
of time, the trial will ultimately conclude. Howsoever serious a crime
may be, an accused has a right to speedy trial as enshrined under
the Constitution of India.
9. Over a period of time, the trial courts and the High Courts
have forgotten a very well settled principle of law that bail is not to
be withheld as a punishment.
10. In the aforesaid context, we may remind the trial courts and
the High Courts of what came to be observed by this Court in
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.”
10
11. The same principle has been reiterated by this Court in
Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2
SCC 565 that the object of bail is to secure the attendance of the
accused at the trial, that the proper test to be applied in the solution
of the question whether bail should be granted or refused is whether
it is probable that the party will appear to take his trial and that it is
indisputable that bail is not to be withheld as a punishment.
12. Long back, in Hussainara Khatoon v. Home Secy., State
of Bihar reported in (1980) 1 SCC 81, this court had declared that
the right to speedy trial of offenders facing criminal charges is
“implicit in the broad sweep and content of Article 21 as interpreted
by this Court”. Remarking that a valid procedure under Article 21 is
one which contains a procedure that is “reasonable, fair and just” it
was held that:
“Now obviously procedure prescribed by law for
depriving a person of liberty cannot be “reasonable, fair
or just”unless that procedure ensures a speedy trial for
determination of the guilt of such person. No procedure
which does not ensure a reasonably quick trial can be
regarded as “reasonable, fair or just” and it would fall
foul of Article 21. There can, therefore, be no doubt that
speedy trial, and by speedy trial we mean reasonably
expeditious trial, is an integral and essential part of the
fundamental right to life and liberty enshrined in
Article21. The question which would, however, arise is
as to what would be the consequence if a person
accused of an offence is denied speedy trial and is
sought to be deprived of his liberty by imprisonment as
a result of along delayed trial in violation of his
fundamental right under Article 21.”
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
11of the society, not versed in the ways of law, where they do
not often get competent legal advice, the application of the
said rule is wholly inadvisable. Of course, in a given case,
if an accused demands speedy trial and yet he is not given
one,may be a relevant factor in his favour. But we cannot
disentitle an accused from complaining of infringement of
his right to speedy trial on the ground that he did not ask
for or insist upon a speedy trial.”
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi)
reported in 2023INSC 311, this Court observed as under:
“21. Before parting, it would be important to reflect that
laws which impose stringent conditions for grant of
bail,may be necessary in public interest; yet, if trials are
not concluded in time, the injustice wrecked on the
individual is immeasurable. Jails are overcrowded and
their living conditions, more often than not, appalling.
According to the Union Home Ministry’s response to
Parliament, the National Crime Records Bureau had
recorded that as on 31stDecember 2021, over 5,54,034
prisoners were lodged in jails against total capacity of
4,25,069 lakhs in the country. Of these 122,852 were
convicts; the rest 4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that inmates are
at risk of “prisonisation” a term described by the
KeralaHigh Court in A Convict Prisoner v. State reported in
1993Cri LJ 3242, as “a radical transformation” whereby
the prisoner:
“loses his identity. He is known by a number. He loses
personal possessions. He has no personal relationships.
Psychological problems result from loss of
freedom,status, 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
12
in several cases, scattering of families as well as loss of
family bonds and alienation from society. The courts
therefore,have to be sensitive to these aspects (because in
the event of an acquittal, the loss to the accused is
irreparable), and ensure that trials – especially in cases,
where special laws enact stringent provisions, are taken up
and concluded speedily.”
15. The requirement of law as being envisaged under Section 19
of the National Investigation Agency Act, 2008 (hereinafter being
referred to as “the 2008 Act”) mandates that the trial under the Act
of any offence by a Special Court shall be held on day-to-day basis
on all working days and have precedence over the trial of any other
case and Special Courts are to be designated for such an offence by
the Central Government in consultation with the Chief Justice of the
High Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A.
Najeeb reported in (2021) 3 SCC 713] had an occasion to consider
the long incarceration and at the same time the effect of Section 43-
D(5) of the UAP Act and observed as under : (SCC p. 722, para 17)
“17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se does not
oust the ability of the constitutional courts to grant bail on
grounds of violation of Part III of the Constitution.
Indeed,both the restrictions under a statute as well as the
powers exercisable under constitutional jurisdiction can be
well harmonised. Whereas at commencement of
proceedings,the courts are expected to appreciate the
legislative policy against grant of bail but the rigours of
such provisions will melt down where there is no likelihood
of trial being 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
13
court expressed the opinion that Section 436A (which requires inter
alia the accused to be enlarged on bail if the trial is not concluded
within specified periods) of the Criminal Procedure Code, 1973would
apply:
“We do not wish to deal with individual enactments as
each special Act has got an objective behind it, followed by
the rigour imposed. The general principle governing delay
would apply to these categories also. To make it clear, the
provision contained in Section 436-A of the Code would
apply to the Special Acts also in the absence of any specific
provision. For example, the rigour as provided under
Section 37 of the NDPS Act would not come in the way in
such a case as we are dealing with the liberty of a person.
We do feel that more the rigour, the quicker the adjudication
ought to be. After all, in these types of cases number of
witnesses would be very less and there may not be any
justification for prolonging the trial. Perhaps there is a need
to comply with the directions of this Court to expedite the
process and also a stricter compliance of Section 309 of the
Code.”
18. Criminals are not born out but made. The human potential in
everyone is good and so, never write off any criminal as beyond
redemption. This humanist fundamental is often missed when
dealing with delinquents,juvenile and adult. Indeed, every saint has
a past and every sinner a future. When a crime is committed, a
variety of factors is responsible for making the offender commit the
crime. Those factors may be social and economic, maybe, the result
of value erosion or parental neglect; may be, because of the stress of
circumstances, or 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.”
15. Learned counsel representing the petitioner has also
placed reliance upon the judgment passed by Hon’ble Apex Court
14
in Special Leave to Appeal (Cri.) No.11582 of 2024, titled Gurdev
Singh vs. State of Himachal Pradesh, decided on 22.11.2024,
wherein it has been held as under:-
“2. After hearing learned counsel for the parties and
from the fact it reveals that out of 29 witnesses, 8
have already been examined and 8 have been given
up by the prosecution. 13 witnesses are yet to be
examined. Looking to the period of incarceration
and the fact that the trial may take some time to
conclude, in the facts of this case, we are of the view
that petitioner is entitled to regular bail.
Accordingly, we direct to release the petitioner on
bail on furnishing the suitable bail bonds and
sureties and on such other terms and conditions as
may be deemed fit by the trial Court.”
16. Hon’ble Apex Court as well as this Court in catena of
cases have repeatedly held that one is deemed to be innocent till
the time guilt, if any, of his/her is not proved in accordance with
law. In the case at hand also, guilt, if any, of the accused is yet
to be proved in accordance with law, by leading cogent and
convincing material on record and as such, his incarceration for
indefinite period is clear cut violation of Fundamental Right
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.
17. Hon’ble Apex Court in Criminal Appeal No.
227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr
15
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.
18. Hon’ble Apex Court in Sanjay Chandra versus
Central Bureau of Investigation (2012)1 Supreme Court
Cases 49 has held that gravity alone cannot be a decisive ground
to deny bail, rather competing factors are required to be balanced
by the court while exercising its discretion. It has been repeatedly
held by the Hon’ble Apex Court that object of bail is to secure the
appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor
preventative.
19. In Manoranjana Sinh alias Gupta versus CBI,
(2017) 5 SCC 218, Hon’ble Apex Court has held that the object
of the bail is to secure the attendance of the accused in the trial
and the proper test to be applied in the solution of the question
whether bail should be granted or refused is whether it is
probable that the party will appear to take his trial. Otherwise
also, normal rule is of bail and not jail. Apart from above, Court
has to keep in mind nature of accusations, nature of evidence in
support thereof, severity of the punishment, which conviction will
16
entail, character of the accused, circumstances which are
peculiar to the accused involved in that crime.
20. The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid
down various principles to be kept in mind, while deciding
petition for bail viz. prima facie case, nature and gravity of
accusation, punishment involved, apprehension of repetition of
offence and witnesses being influenced.
21. In view of the aforesaid discussion as well as law laid
down by the Hon’ble Apex Court, petitioner has carved out a case
for grant of bail, accordingly, the petition is allowed and the
petitioner is ordered to be enlarged on bail in aforesaid FIR,
subject to his furnishing personal bond in the sum of
Rs.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
(d) He shall not leave the territory of India without the prior
permission of the Court.
17
22. 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.
23. 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.
24. 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
April 23, 2025
(shankar)
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