Himachal Pradesh High Court
Karam Singh vs State Of Himachal Pradesh on 28 March, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP (M) Nos.241 & 250 of 2023 Reserved on: 22.03.2023 Decided on : 28.03.2023 (1) Cr.MP(M) No.241 of 2023 Karam Singh ....Petitioner Versus State of Himachal Pradesh ....Respondent ________________________________________________ (2) Cr.MP(M) No.250 of 2023 Narain Singh ....Petitioner Versus State of Himachal Pradesh ....Respondent _________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 ______________________________________________________ For the petitioner(s) : Mr. Kulbhushan Khajuria, Advocate.
For the respondent : Mr. B.N. Sharma, Additional Advocate General with Mr. R.P. Singh & Ms. Avni Kochhar Mehta, Deputy Advocates General.
________________________________________________ 1 . Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/03/2023 20:44:59 :::CIS 2Sushil Kukreja, Judge .
Since both these petitions arise out of the same FIR, hence, they were heard together and are being disposed of by a common order.
2. By way of instant petitions filed under Section 439 of the Criminal Procedure Code, the petitioners are seeking bail in case FIR No.84/2021, dated 05.07.2021, registered at Police Station Tissa, District Chamba, H.P., under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').
3. The brief facts of the case, as per the status report filed by the respondent-State, are that on 05.07.2021, the police party, while on patrolling duty, was returning in a private vehicle bearing registration No.HP47A-0748 from Baira Siul Dam Tissa towards Chamba and when they reached at Jassourgarh zero point near the rain shelter at about 3:00 a.m., they noticed two persons sitting in the rain shelter and on seeing the police, one of them, suddenly tried to hide a carry bag behind his back. On raising suspicion, the police stopped the vehicle and asked the reason for their ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 3 presence at that place during odd hours, upon which, both of .
them got perplexed and could not give any satisfactory answer. Thereafter, the police asked name of the person having a carry-bag with him, who disclosed his name as Narain Singh and the other person disclosed his name as Karam Singh. The police tried to associate independent witnesses, but no witness was available at that secluded place, as such, the police officials present on the spot were associated as independent witnesses and thereafter, the said carry-bag was searched. On opening of the same, a black coloured substance in the shape of sticks was found, which on the basis of experience was found to be cannabis/charas and on weighment, the recovered contraband was found to be 2 kg 52 grams. Thereafter, the police completed all the codal formalities and FIR as detailed hereinabove was registered against the accused persons and they were arrested.
4. Learned counsel for the petitioners contended that the petitioners are innocent and they have been falsely implicated in this case. He further contended that the petitioners are in judicial custody for the last more than 1½ ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 4 years and, as such, they are entitled to be released on bail .
on the ground that their right of speedy trial has been violated.
5. Per contra, the learned Additional Advocate General opposed the bail applications on the ground that the petitioners do not deserve to be released on bail as they have been found involved in a serious offence, so at this stage, in case they are enlarged on bail, they may tamper with the prosecution evidence and may also flee from justice.
6. I have given my considered thought to the rival contentions raised and also gone through the police file as well as the status report filed by the prosecution. A perusal of the record reveals that the allegation against the petitioners is that they were found in conscious possession of cannabis/ charas, weighing 2 Kg 52 grams. The petitioners were arrested on 05.07.2021 and since then they are behind the bars and till date, out of total 21 witnesses, only 5 witnesses have been examined.
7. In Union of India Versus K.A. Najeeb, (2021) 3 Supreme Court Cases 713, the Hon'ble Supreme Court observed that once it is obvious that a timely trial would not ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 5 be possible and the accused has suffered incarceration for a .
significant period of time, the Courts would ordinarily be obligated to enlarge them on bail. The relevant para of the judgment is reproduced as under:-
"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Under trial Prisoners) v. Union of India, it was held that under trials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail."
8. It is not in dispute that Article 21 of the Constitution of India guarantees for speedy trial and an ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 6 under trial prisoner cannot be detained in jail/custody for an .
indefinite period. From the foregoing enunciation of the law laid down by the Supreme Court, it becomes clear that long incarceration of an under trial without any likelihood of conclusion of trial in near future infringes upon the right of speedy trial of such under trial.
9. In Satender Kumar Antil Versus Central Bureau of Investigation & another, (2022) 10 Supreme Court Cases 51, after taking note of the decision given in Siddharth vs. State of U.P. & Anr. [(2022) 1 SCC 676], it has been held by the Hon'ble Supreme Court that personal liberty is an important aspect of our constitutional mandate.
The relevant portion of the judgement reads as under:-
"44. This Court in Sidharth v. State of U.P., has held that:-
..........10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 7 between the existence of the power to arrest and .
the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused......."
10. Now, the question that arises for consideration before this Court as to whether the presence of statutory restrictions like Section 37 of NDPS Act 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 rigors of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time.
11. Recently, in a number of cases, under-trials for offences involving commercial quantity of contraband under ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 8 NDPS Act, have been allowed the liberty of bail by the .
Hon'ble Supreme Court only on the ground that they have been incarcerated for prolonged durations. In Mahmood Kurdeya Vs. Narcotic Control Bureau, (2022) 3 RCR (Criminal) 906, the Hon'ble Supreme Court has held as under:-
"6.What persuades us to pass an order in favour of the appellant is the fact that despite the rigors of Section 37 of the said Act, in the present case though charge sheet was filed on 23.09.2018 even the charges have not been framed nor trial has commenced."
12. In Nitish Adhikary @ Bapan Vs. The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022, the Hon'ble Supreme Court has held as under:
"During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.
Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 9 merits of the case, we are inclined to grant bail to the .
petitioner."
13. In Gopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022, the Hon'ble Supreme Court has held as under:-
"The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No. 02/2020 in respect of offences punishable under Sections 8,20,27AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act,1985.
The application seeking relief of bail having been rejected, the instant appeal has been filed. We have heard Mr. Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr.Sanjay Jain, learned Additional Solicitor General for the respondent.
Considering the fact and circumstances on record and the length of custody undergone by the appellant, in our view the case for bail is made out."
14. In Chitta Biswas @ Subhas Vs. The State of West Bengal, (Criminal Appeal No.(s) 245 of 2020, decided on 07.02.2020, it has been held as under:-
"The appellant was arrested on 21.07.2018 and continues to be custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.::: Downloaded on - 28/03/2023 20:44:59 :::CIS 10
Without expressing any opinion on the merits or .
demerits of the rival submissions and considering the facts and circumstances on record, in our view, case for bail is made out."
15. In addition, different Coordinate Benches of this Court have also followed precedent to grant bail to the accused in NDPS Act, on the ground of prolonged pre-trial incarceration. Reference can be made to order dated 28.07.2022, passed in Cr.MP(M) No.1255 of 2022, order dated 01.12.2022, passed in Cr.MP(M) No.2271 of 2022, order dated 04.11.2022, passed in Cr.MP(M) No.2273 of 2022 and Cr.MP(M) No. 2640 of 2022, wherein the bail applications in cases under the NDPS Act were allowed, despite rigor of Section 37 of the said Act, on the ground of delay in conclusion of trial and violation of right of speedy trial.
16. Adverting to the case at hand, this Court is conscious of the fact that the charges levelled against the petitioners are grave and serious. Had it been a case at the threshold, this court would have outrightly turned down the petitioners' prayer. However, the trial has not progressed much and till date, out of total 21 witnesses, only 5 witnesses have been examined and there is no likelihood of completion ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 11 of trial in near future. The petitioners are in custody since .
05.07.2021 and they have suffered incarceration for more than 1½ years. Their detention has virtually become pre-trial punishment to them. There is also nothing on record to suggest that the delay in trial is attributable to the petitioners.
The prosecution has failed to produce any material on record to suggest that the petitioners will tamper with the prosecution evidence or will abscond and flee from justice, on being enlarged on bail as, admittedly, they are permanent residents of District Chamba. Therefore, keeping in view the length of the period spent by them in custody for the last more than 1½ years and the unlikelihood of the trial being completed in near future, the petitioners deserve to be released on bail.
17. Consequently, after going through the material available on record and considering the overall facts and circumstances of the case, I am of the considered view that the present is a fit case where judicial discretion to admit the petitioners on bail is required to be exercised in their favour.
Accordingly, the bail petitions are allowed and it is ordered that the petitioners, who have been arrested by the police, in case FIR No.84/2021, dated 05.07.2021, registered at Police ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 12 Station Tissa, District Chamba, H.P., under Sections 20 & 29 .
of ND&PS Act, shall be forthwith released on bail, subject to their furnishing personal bond to the tune of Rs.2,00,000/-
(Rupees two lakhs) each, with one surety each in the like amount to the satisfaction of learned trial Court. The bail is, however, subject to the following conditions:-
(i) that the petitioners will regularly attend the trial of the case before the trial Court and will not deliberately and intentionally act in a manner which may tend to delay the trial of the case.
(ii) that they will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her/them from disclosing any facts to the Court or the police;
(iii) that they will not tamper with the prosecution evidence nor they will try to win over the Prosecution witnesses or terrorise them in any manner;
(iv) that they will not repeat the offence, as is alleged to have been committed by them.
(v) that they will not leave India without prior permission of the Court.
18. Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioners.
19. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the ::: Downloaded on - 28/03/2023 20:44:59 :::CIS 13 merits of the case and the trial Court will not be influenced by .
any observations made therein.
(Sushil Kukreja)
March 28, 2023 Judge
(VH)
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