Himachal Pradesh High Court
Mangal Chand vs State Of Himachal Pradesh on 24 July, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CrM.P.(M) No. 1453 of 2023
Reserved on 04.07.2023
Decided on : 24.07.2023
Mangal Chand ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Bhupinder Ahuja, Advocate.
For the respondent : Mr. Mohinder Zaraick and Mr.H.S. Rawat, Additional Advocates General with Ms. Avni Kochhar and Ms. Leena Guleria, Deputy Advocates General.
Virender Singh, Judge.
Applicant Mangal Chand has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), for releasing him on bail, during the pendency of trial, in case FIR No. 331 of 2021, dated 19th November, 2021, registered with Police 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 2Station Sadar Kullu, District Kullu, H.P. under Sections 20 and of the Narcotic Drugs and Psychotropic Substances Act .
(hereinafter referred to as 'NDPS Act').
2. The applicant has sought the relief of bail on the ground that he has falsely been implicated in this case.
According to him, the investigation against him, in the present case, is complete and nothing has to be recovered from him.
The applicant is stated to be in judicial custody since 19.11.2021.
3. On the basis of above facts, Mr. Bhupender Ahuja, Advocate appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, he is ready to abide by, in case, released on bail. It has been submitted that out of total 16 witnesses, till date, only six witnesses have been examined. These facts have been highlighted to show that the conclusion of the trial against the applicant are not so bright.
4. When put to notice, police has filed the status report disclosing therein that on 19.11.2021, Head Constable Sandeep Kumar, alongwith other police officials, was on patrolling duty. At about 3.10 p.m., when police party was ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 3 present at a place known as, Puyeed, then, they have received a secret information that one Nepali citizen namely Mangal .
Chand will go from Larri Kot village to Kullu, who is in possession of huge quantity of charas and will sell the same to some unkown person in Kullu and in case, he is apprehended, then, huge quantity of charas could be recovered from him.
On the basis of secret information, two persons namely Kishan Dutt and Amar Nath were associated as independent witnesses. At about 5.30 p.m., they noticed a person coming on foot from Laari Koti side having a carry bag in his right hand.
He was apprehended in presence of witnesses.
5. On inquiry, the said person disclosed his name Mangal Chand son of Inder Singh (applicant). Thereafter, the carry bag being carried by the applicant was opened, then, pancake shaped, sticks shaped and ball shaped black substance was found. On smelling and on the basis of experience, the said black coloured substance was found to be charas/cannabis. Thereafter, the said contraband was weighed on the electronic weighing scale, which was found to be 1.534 kgs. The contraband was again put in the same carry bag, which was sealed with six seals with impression 'RSUI'. NCB ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 4 forms in triplicate were filled on the spot and other codal formalities were completed on the spot and the applicant was .
arrested.
6. On 13.12.2021, the accused was produced before the learned Judicial Magistrate First Class, Kullu. The sample of the contraband was sent to the State Forensic Science Lab, Junga and the positive report in this regard has been received. r
7. After the completion of investigation, challan has been filed against the applicant, which is pending in the Court of learned Special Judge, Kullu, District Kullu, H.P. and the case is now stated to be fixed for PWs on 27/28.07.2023.
8. Apart from this, it is the case of the police that applicant has brought the charas for self consumption, as well as, to sell the same to the tourists in Manali.
9. On all these submissions, a prayer has been made to dismiss the bail application.
10. Before discussing the matter, it would be apt to reproduce para 6 of the application as under:-
"6. That this Hon'ble court is various judgments granted bail to similarly situated accused on the ground of delay i.e. Cr.MPM number 906 of 2023 dated 28.04.2023, Cr.MPM number 685 of 2023 dated ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 5 28.04.2023 and various other cases. In the case of S. Kasi versus state through Inspector....the Hon'ble Supreme court in Para 31 observe as under: '...It is well settled that a coordinate bench cannot take a contrary .
view and in event there was any doubt, a Coordinate Bench only can refer the matter for consideration by Larger Bench.' In this eventuality the petitioner may be granted bail as similarly situated accused."
11. This para no-where leads this Court to any conclusion. Learned counsel appearing for the applicant has miserably failed to show as to how the present applicant is similar situated to the applicants in those cases. Every case has to be decided, according to the peculiar facts and circumstances, of that case. No two cases can be said to be similar.
12. Simply giving the case numbers and citing the decision of the Supreme Court, without mentioning the citation or details of the case, no-where helps the case of the applicant. Even otherwise, it is expected from the Counsel to give details of the cases and also satisfy the conscience of this Court as to how the case law relied upon by the applicant helps the case of the applicant. As such, no benefit could be derived by the learned counsel for the applicant from factual position as pleaded in para 6 of the application.
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 613. The contraband allegedly recovered from the possession of the accused certainly falls within the definition of .
'commercial quantity'. Once, it has been held that the contraband recovered from the possession of accused falls within the definition of 'commercial quantity', then, rigors of Section 37 of the NDPS Act are applicable, in the present case.
14. The provisions of section 37 of the NDPS are reproduced as under:-
"37. Offences 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 for an offence punishable for [offences under section 19 or section 24 of section 27A and also for offences involving commercial quaniyt] shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity 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 offence and that he is not likely to commit any offence while on bail."
15. So far as the first condition of Section 37 of the NDPS Act is concerned, by giving notice to the Public Prosecutor the same has been complied with.
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 716. So far as the fulfillment of other conditions are concerned, the Hon'ble Apex Court in a recent decision, in .
case titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444, has reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act. The relevant paras 10 to 15 of the judgment are reproduced, as under:
"10. The provisions of Section 37 of the NDPS Act read as follows:
"[37. Offences 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 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity 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 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 ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 8 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.
.
11. It is evident from a plain reading of the non-
obstante clause inserted in sub-section (1) and the conditions imposed in subsection (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 Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is 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 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 ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 9 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 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 and others Vs. Rajesh and others" (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 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 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 ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 10 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 the 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 he is unlikely to commit an offence under the Act while on bail."
17. The Hon'ble Apex Court in Mohd. Muslim @ Hussain vs. State (NCT of Delhi) 2023(5) Scale has elaborately discussed the conditions of Section 37 of the NDPS Act. The relevant paras 9 to 23 of the same are reproduced as under:-
"9. Mr. Vikramjit Banerjee, learned Additional Solicitor General of India, appearing for the State, strongly opposed grant of bail, citing Section 37 of the NDPS Act. It was urged that the appellant was actively involved in the commission of the offence - with call records and bank transactions implicating him with the main accused Virender Singh @ Beerey. The ASG submitted that such cases are deeply ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 11 concerning, as the accused persons are said to be involved in a drug peddling network. The public interest of protection against sale and use of illegal drugs, outweighed the .
concerns regarding individual liberty of the accused, and justified continued custody of the appellant. Provisions like Section 37 of the NDPS Act have been upheld by this court, as necessary to ensure public order and to prevent recurrence of serious crimes like drug dealing. The learned ASG also submitted that the role of the appellant, though 6 Order dated 10.12.2018 in Bail Application No. 2188/2018, and order dated 26.07.2018 in Bail Application No. 944/2018, respectively. He is a co-accused is prominent, as he appears to be the mastermind behind the supply and delivery of narcotic substances from Chhattisgarh.
Analysis and Conclusions
10. Section 37 of the NDPS Act reads as follows:
"Offences to be cognizable and non-bailable--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity 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 ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 12 believing that he is not guilty of such 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 or any other law for the time being in force, or granting of bail."
11. In this case, as it stands, the appellant has been in custody since 03.10.2015, barring grant of interim bail from time to time, for wedding ceremonies7 and to take care of his ailing mother8. It was observed by this court, in State of Madhya Pradesh v. Kajad9 while commenting on Section 37 of the NDPS Act, that a "liberal" approach should not be adopted:
"Negation of bail is the rule and its grant and exception under sub clause (ii) of clause (b) of Section 37(1). For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail."
[4] Order dated 03.05.2016 by the Special Judge; and Order dated 28.01.2022 by the Special Judge.
[5] Order dated 24.07.2020 in Bail Application No. 1859/2020. 9 [2001] Supp. 2 SCR 617: (2001) 7 SCC 673.
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 1312. This court has to, therefore, consider the appellant's claim for bail, within the framework of the NDPS Act, especially Section 37. In Supreme Court Legal Aid .
Committee (Representing Undertrial Prisoners) v. Union of India 10, this court made certain crucial observations, which have a bearing on the present case while dealing with denial of bail to those accused of offences under the NDPS Act:
"On account of the strict language of the said provision very few persons accused of certain offences under the Act could secure bail. Now to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of the Code and Articles 14, 19 and 21 of the Constitution. We are conscious of the statutory provision finding place in Section 37 of the Act prescribing the conditions which have to be satisfied before a person accused of an offence under the Act can be released. Indeed we have adverted to this section in the earlier part of the judgment. We have also kept in mind the interpretation placed on a similar provision in Section 20 of the TADA Act by the Constitution Bench in Kartar Singh v. State of Punjab [(1994) 3 SCC 569]. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1992) 1 SCC 225] , release on bail, which can be taken to be embedded in the right of ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 14 speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and .
setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right 10 [1994] Supp. 4 SCR 386: (1994) 6 SCC 731 guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters." (self emphasis supplied).
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 Rajasthan11 ("the concept of bail emerges from ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 15 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 Punjab12 made observations to this effect. In Shaheen Welfare Association v. Union of India13 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 undertrial 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."
14. In a recent decision, while considering bail under the Unlawful Activities Act (Prevention) Act, 1967, this court in Union of India v. K. A. Najeeb14 observed that:
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 16"12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic .
Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252] , Babba v. State of Maharashtra, (2005) 11 SCC 569 and Umarmia v. State of Gujarat, (2017) 2 SCC 731 enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial.The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians."
The court concluded that statutory restrictions like Section 43-D(5) of the UAPA, cannot fetter a constitutional court's ability to grant bail on ground of violation of fundamental rights.
15. Even in the judgment reported as Vijay Madanlal Chaudhary v. Union of India15 this court while considering bail conditions under the Prevention of Money Laundering Act, 2002, held that:
"If the Parliament/Legislature provides for stringent provision of no bail, unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time, at least before the accused undergoes detention for a period extending up to one-half of the maximum period of ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 17 imprisonment specified for the concerned offence by law."
.
16. In the most recent decision, Satender Kumar Antil v.
Central Bureau of Investigation16 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 436A17 (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, 1973 would 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."
[6] Section 436A provides as follows:
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 18"Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which .
the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties;
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties;
Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law."
17. The facts in this case reveal that the recovery of ganja was made on 28.09.2015, from the four co- accused, including Nitesh Ekka. The present appellant was arrested at the behest, and on the statement of this Nitesh Ekka. The prosecution has relied on that statement, as well as the confessional statement of the present appellant; in addition, it has relied on the bank statements of Virender Singh @ Beerey, who allegedly disclosed that money used to be transferred to the appellant. As against this, the prosecution has not ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 19 recovered anything else from the appellant; its allegation that he is a mastermind, is not backed by any evidence of extensive dealing with narcotics, which .
would reasonably have surfaced. The prosecution has not shown involvement of the appellant, in any other case. Furthermore, he was apparently 23 years of age, at the time of his arrest. It is an undisputed fact that two co- accused persons (who also, were not present at the time of raid and from whom no contraband was recovered) - the accused (Virender Singh @ Beerey) who allegedly transferred money to the appellant's account as payment for the ganja, and the accused (Nepal Yadav @ Tony Pahalwan) from whom the original insurance papers and registration certificate of the car from which contraband was seized, was recovered18 - have both been enlarged on bail. The appellant has been in custody for over 7 years and 4 months. The progress of the trial has been at a snail's pace: 30 witnesses have been examined, whereas 34 more have to be examined.
[7] As per the counter-affidavit dated 21.02.2023 filed by the respondent-state before this court.
18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a 18 As per the counter-affidavit dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court's discretion within a very narrow margin. Given ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 20 the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classify offences based on their gravity, and instruct that certain serious crimes .
have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused co-operating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 21 offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, .
the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having 19 (2009) 2 SCC 624 regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 2221. 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 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. 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 Kerala High Court in A Convict Prisoner v. State21 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 ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 23 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.
18. The Hon'ble Apex Court in a recent decision in Rabi Prakash vs. The State of Odisha, Special Leave to Appeal (Crl.) No(s). 4169 of 2023, decided on 13.07.2023 has held that the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution. The relevant para 4 of the judgment is reproduced as under:-
"4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, general militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the ::: Downloaded on - 24/07/2023 20:38:23 :::CIS 24 statutory embargo created under Section 37(1) (b) (ii) of the NDPS Act."
.
19. Judging the facts and circumstances of the present case, in the light of decision of the Hon'ble Apex Court (supra), the accused is in judicial custody for the last 20 months and the trial has not yet concluded. In such a situation, the applicant cannot be kept in judicial custody for indefinite period. Moreover, keeping the slow pace of trial, this Court is of the view that the chances of commencement of the trial against the applicant are not so bright.
20. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
21. The applicant is ordered to be released on bail in case FIR No. 331 of 2021, dated 19th November, 2021, registered with Police Station Sadar Kullu, District Kullu, H.P. under Sections of the NDPS Act, on his furnishing personal bail bonds, in the sum of ₹50,000/-, with two sureties of the like amount, to the satisfaction of learned Special Judge, Kullu. This order, however, shall be subject to the following conditions:
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 25a) 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 them 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.
e) He shall appear before the I.O. in the 1 st week of every month till the conclusion of trial.
22. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.
23. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.
24. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Kullu through e-
mail, with a direction to enter the date of grant of bail in the e-
prison software.
::: Downloaded on - 24/07/2023 20:38:23 :::CIS 2625. In case, the applicant is not released within a period of seven days from the date of grant of bail, the .
Superintendent of Jail, Kullu, is directed to inform this fact to the Secretary, DLSA, Kullu. The Superintendent of Jail, Sub-
Jail Kullu, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
r ( Virender Singh )
Judge
July 24, 2023
( naveen )
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