Himachal Pradesh High Court
________________________________________________________________ vs State Of Himachal Pradesh on 19 April, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr.MP(M) No. 495 of 2024
Date of Decision: 19.4.2024
________________________________________________________________
Machala Ram
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner: r Mr. Surender K. Sharma, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.
Verma, Additional Advocates General with Mr. Ravi
Chauhan, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Machala Ram, who is behind the bars since 30.4.2023, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, for grant of regular bail in case FIR No.42/23, dated 23.4.2023 (SIC:23.4.2024), under Sections 20, 25 and 29 of the NDPS Act, 201 of IPC and 196 of MV Act, registered at PS Shahpur, District Kangra, H.P.
2. Pursuant to order dated 18.3.2024, respondent-State has filed the status report and ASI Pawan Kumar, has come present with record.
Record perused and returned.
::: Downloaded on - 22/04/2024 20:30:44 :::CIS 23. Close scrutiny of status report/record reveals that that on .
23.4.2023, police intercepted a vehicle bearing registration No. HP 39D-
1187, being driven by co-accused namely Vijay Singh, for checking. Since above named person got perplexed after having seen the police and started making excuses, police after having associated the independent witnesses conducted search of the vehicle as well as person of the co-accused Vijay Singh and allegedly recovered 1.004kg of charas from the stepney of the vehicle. Since no plausible explanation ever came to be rendered on record qua the possession of the aforesaid quantity of contraband by the above named person, police after completion of necessary codal formalities, lodged FIR, as detailed herein above and arrested him. Since above named co-
accused Vijay Singh, during investigation, allegedly disclosed to the police that he had purchased the aforesaid commercial quantity of contraband from the present bail petitioner-Machala Ram, police also arrested the bail petitioner on 30.4.2023 and since then, he is behind the bars. Since challan stands filed and nothing remains to be recovered from the bail petitioner, he has approached this court in the instant proceedings for grant of regular bail on the ground of delay in the conclusion of the trial.
4. Mr. Surender K. Sharma, learned counsel appearing for the petitioner, vehemently argued that the bail petitioner has been falsely ::: Downloaded on - 22/04/2024 20:30:44 :::CIS 3 implicated. While referring to the statement made by the co-accused, Mr. .
Sharma, states that at no point of time, co-accused Vijay Singh, from whose conscious possession, contraband was recovered, was able to recognize the present bail petitioner, rather, he, in his statement, categorically deposed to the police that he cannot recognize the bail petitioner. Mr. Sharma, further submitted that otherwise also, petitioner has been booked under Section 29 of the Act, on the basis of statement made by the co-accused, which is inadmissible under law. He further submits that otherwise also, there is an inordinate delay in conclusion of the trial and as such, bail petitioner deserves to be enlarged on bail on the ground of delay.
5. Mr. Rajan Kahol, learned Additional Advocate General, while fairly admitting factum with regard to filing of challan in the competent court of law, 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. While making this court peruse the record, learned Additional Advocate General, submits that there is overwhelming evidence adduced on record in the shape of CDR and bank transaction suggestive of the fact that contraband recovered from the conscious possession of the co-accused was actually purchased by the ::: Downloaded on - 22/04/2024 20:30:44 :::CIS 4 co-accused from the bail petitioner and in that regard, co-accused had .
transferred Rs. 85,000/-. While fairly admitting that in the past, no case stands registered against the petitioner, Mr. Kahol, contends that keeping in view the quantity of contraband, it would be too premature to conclude at this stage that bail petitioner is not a drug peddler, rather evidence collected on record clearly indicates that bail petitioner indulges in illegal trade of narcotics and as such, in the event of his being enlarged on bail, he may not only flee from justice, but may indulge in these activities again.
6. Having heard the learned counsel representing the parties and perused material available on record, this court finds that it is not in dispute that on the date of the alleged incident, commercial quantity of contraband came to be recovered from the vehicle being driven by the co-
accused Vijay Singh, who though allegedly disclosed to the police that he had purchased the quantity of contraband from the present bail petitioner, but yet was unable to recognize the present bail petitioner. He categorically deposed to the police that he had purchased the commercial quantity of contraband during night hours and as such, he is unable to recognize the seller. If it is so, it is not understood that how and on what basis, bail petitioner came to be implicated in the case at hand. No doubt, CDR adduced on record suggests that bail petitioner had been talking to the co-
::: Downloaded on - 22/04/2024 20:30:44 :::CIS 5accused Vijay Singh, but that may not be a ground to conclude guilt, if any, .
of the bail petitioner, rather in that regard, cogent and convincing evidence is required to be adduced on record. Similarly, there is no bank transaction between bail petitioner and co-accused Vijay Singh suggestive of the fact that sum of Rs. 85,000/- was ever transferred by the co-accused Vijay Singh in the bank account of the present bail petitioner. Leaving everything aside, bail petitioner came to be named in the FIR on the basis of statement made by the co-accused, which is inadmissible in law.
7. Hon'ble Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, has categorically held that disclosure statement, if any, made under Section 67 of the NDPS Act, is inadmissible and same cannot be used as confessional statement in the trial of an offence under Section 67 of the Act. Relevant para of the aforesaid judgment reads as under:
"155.Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.
156.The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.::: Downloaded on - 22/04/2024 20:30:44 :::CIS 6
157.On the other hand, for the reasons given by us in this judgment, .
the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v.
Inspector, Customs (2011) 12 SCC 298 are correct in law.
158.We answer the reference by stating:
(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."
8. Hon'ble Apex Court in case titled State by (NCB) Bengaluru v.
Pallulabid Ahmad Arimutta and Anr, Special Leave to Appeal (Crl) No. 242 of 2022 (arising out of diary No. 22702 of 2020) decided on 10.1.2022, again reiterated that confessional statement recorded under Section 67 of the NDPS Act, will remain inadmissible in the trial of an offence under the Act. Hon'ble Apex Court in this case upheld the order/judgment passed by the High Court of Karnataka granting bail to the accused arrested by the petitioner NCB on the basis of confessional/ voluntary statement of the co-
accused under Section 67 of the NDPS Act. Apart from above, Hon'ble Apex Court in the aforesaid judgment has held that CDR details of some of the accused or the allegations of tempering of evidence on the part of the respondents is an aspect that will be examined at the stage of the trial.
::: Downloaded on - 22/04/2024 20:30:44 :::CIS 79. Though it has been claimed that recovery was effected in the .
presence of the independent witnesses, but this court cannot lose sight of the fact that contraband was not recovered from the person of the bail petitioner. No doubt, rigours of Section 37 of the Act, are attracted in the present case, but bare perusal of provisions contained under Section 37 of Act ibid, nowhere suggests that no bail can be granted in cases involving commercial quantity, rather in such cases, court after affording due opportunity of hearing to public prosecutor can proceed to grant bail, if it is satisfied that the bail petitioner has been falsely implicated and in the event of bail being granted, he will not indulge in such activities again.
10. Though in the present case, learned counsel for the petitioner has not been able to point out any circumstance indicative of the fact that bail petitioner has been falsely implicated, but having taken note of the fact that there is no case registered against the petitioner in the past, this Court has reason to presume and believe that in the event of petitioner's being enlarged on bail, he would not indulge in these activities again.
11. Question, which needs determination in the case at hand is "whether the provisions of Section 37 of the Act can be construed to have same efficacy throughout the trial notwithstanding the period of custody of the accused, especially, when it is weighed against their fundamental right ::: Downloaded on - 22/04/2024 20:30:44 :::CIS 8 to have expeditious disposal of trial." Hon'ble Apex Court as well as this .
Court in catena of cases have categorically held that speedy trial is right guaranteed to the accused and violation thereof, if any, amounts to violation of the fundamental right, especially Article 21 of the Constitution of India.
12. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v.
State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
"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).
13. Learned counsel for the petitioner while inviting attention of this court to judgment dated 29.3.2023 passed in Petition for Special Leave to Appeal (Crl.) No. 1904 of 2023, Sunil Kumar v. State of Himachal Pradesh, submits that petition having been filed by bail petitioner deserves to be allowed on the ground of inordinate delay in ::: Downloaded on - 22/04/2024 20:30:44 :::CIS 9 conclusion of the trial. Perusal of the aforesaid judgment reveals that .
petitioner in the aforesaid case, was behind bars for more than 1½ years and trial was yet to be concluded and Hon'ble Apex Court having taken note of inordinate delay in conclusion of the trial, proceeded to enlarge the petitioner in that case on bail. Learned counsel also invited attention of this Court to the judgments dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023, titled Puran Chand v. State of HP and Prem chand v. State of HP., to state that in similar facts and circumstances, coordinate Bench of this Court as well as this Court enlarged the accused on bail on the ground of inordinate delay. Having perused aforesaid judgments passed by the coordinate Bench of this Court, this Court finds that in both the cases, commercial quantity of contraband was recovered from the accused, but yet court having taken note of the fact that they were behind the bars for more than three years, proceeded to enlarge them on bail.
14. 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 ::: Downloaded on - 22/04/2024 20:30:44 :::CIS 10 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.
15. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred to 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 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.
16. Recently, Hon'ble Apex Court in SLP(Crl) No. 1904 of 2023 titled Sunil Kumar v. The State of Himachal Pradesh, decided on 29.3.2023, has ordered enlargement of petitioner therein, who was behind bars for one and half years, on the ground of delay in trial and conduct of the petitioner.
::: Downloaded on - 22/04/2024 20:30:44 :::CIS 1117. 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, especially in the cases where rigors of Section 37 are attracted.
18. In the instant case, bail petitioner is behind bars since 30.4.2023 and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period.
19. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Apprehension expressed by learned Assistant Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.
20. 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 ::: Downloaded on - 22/04/2024 20:30:44 :::CIS 12 the Hon'ble Apex Court in the aforesaid judgment that a person is believed .
to be innocent until found guilty.
21. 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.
22. 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 entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
::: Downloaded on - 22/04/2024 20:30:44 :::CIS 1323. 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.
24. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, bail 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. 5,00,000/- 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.::: Downloaded on - 22/04/2024 20:30:44 :::CIS 14
25. 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.
26. 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.
27. The bail 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.
April 19, 2024 ( Sandeep Sharma ),
(manjit) Judge
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