Himachal Pradesh High Court
Mosin Ali Syed vs State Of Himachal Pradesh on 25 August, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr.M.P.(M) No.1882 of 2023
Date of Decision: August 25, 2023
Mosin Ali Syed ...Petitioner.
.
Versus
State of Himachal Pradesh ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
of
For the Petitioner: Mr.Rajesh K. Sharma, Advocate.
For the Respondent: Mr.Manoj Chauhan, Additional Advocate
General.
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Vivek Singh Thakur, J (Oral).
Petitioner has approached this Court, seeking bail under Section 439 Code of Criminal Procedure (in short 'Cr.P.C.'), in FIR No.199 of 2021, dated 09.12.2021, registered in Police Station Aut, District Mandi, H.P., under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') and Section 279 of the Indian Penal Code (in short 'IPC).
2. Status report stands filed and record was also made available.
3. As per status report, on 09.12.2021, Constable Satish Kumar of Special Investigation Unit (SIU) Kullu telephonically informed to Police Station Aut, District Mandi, that they had laid a Nakka in front of Bhuntar Airport and during Nakka, a silver coloured Car No.HP-18A-4224, with two occupants i.e. one young 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 25/08/2023 20:34:51 :::CIS 2man and one young woman, did not stop on the Nakka and thus was being chased by the police party, and that Car had collided with Toll Plaza at Takoli, and as the area was falling in jurisdiction .
of Police Station Aut, District Mandi, H.P., request was made to take further action by sending Investigating Officer on the spot.
4. In furtherance to aforesaid information, police party from Police Station rushed to the spot and found an accidental of Car on the spot with two occupants, one young man and young woman therein. The said Car was detained and covered by Alto Car parked behind it by Constable Satish Kumar and Constable rt Budhi Singh of SIU Kullu, who narrated the circumstances to police party of Police Station Aut.
5. Due to conduct of occupants, suspicion arose and, therefore, after joining two independent witnesses, occupants of the Car were inquired about reason for fleeing from the Nakka, but they could not give any satisfactory answer. On inquiry, the boy disclosed his name Mosin Ali Sayed (petitioner) alongwith his address and the girl disclosed her name as Nayanika (co-
accused) alongwith her address, in presence of witnesses.
6. During search of the car, 1.803 kilogram charas was recovered which was kept under the driver seat. After following prescribed procedure, charas was taken in possession and seized. By sending Rukka to the Police Station, FIR was registered. In the facts and circumstances of the incident, Section 279 IPC was also added alongwith Sections 20, 25 and 29 of NDPS Act. Thereafter, petitioner, alongwith co-accused ::: Downloaded on - 25/08/2023 20:34:51 :::CIS 3 Nayanika, was arrested at 5.10 p.m. on 09.12.2021 and since then, after remaining in police custody, they are in judicial custody.
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7. As per status report, both accused were interrogated.
During interrogation, Mosin Ali Sayed disclosed that he purchased charas from Tek Ram. Tek Ram was not found at home. He had filed a petition for enlarging him on anticipatory of bail, which was dismissed.
8. Co-accused Nayanika was enlarged on bail vide order dated 07.01.2023, passed in Cr.M.P.(M) No. 2385 of 2022, titled rt as Nayanika vs. State of Himachal Pradesh, wherein it was contended on behalf of Nayanika that nothing was recovered from her conscious possession and she was not instrumental or participant in procuring charas because she was accompanying present petitioner on his request for excursion for having friendly relation with him, who had parked his car at a lonely place at Kullu, and had gone to meet someone and during that time she was sleeping in the car having no information or knowledge about mission of petitioner.
9. Learned counsel for the petitioner has submitted that petitioner is seeking bail not only on the ground of parity, but also on other grounds. It has been submitted hat earlier also petitioner had filed Cr.M.P.(M) Nos. 462 of 2023 and 908 of 2023 for enlarging him on bail, which were dismissed as withdrawn on 27.03.2023 and 14.06.2023 respectively.
::: Downloaded on - 25/08/2023 20:34:51 :::CIS 410. It has further been submitted on behalf of the petitioner that as per prosecution case, charas alleged to be recovered from the car is 1.803 kilogram and petitioner is .
behind the bars since last about 1 year 8 months. Till date, out of 15 witnesses only 5 witnesses have been examined and next date for recording evidence has been fixed on 19.10.2023, and by that time, petitioner would suffer detention of 1 year 9 of months, whereas, remaining witnesses would be examined thereafter and, therefore, there is no likelihood of completion of trial in near future and, thus, petitioner, at this stage, is entitled rt for bail.
11. Learned counsel for the petitioner to substantiate the plea for bail has referred order dated 03.04.2023, passed in Cr.M.P.(M) No. 634 of 2023, titled as Dhale Ram vs. State of Himachal Pradesh, and various orders/pronouncements referred therein which read as under:-
"5. Learned counsel for the petitioner, to substantiate plea for bail, has referred pronouncement of the order dated 01.08.2022 passed by the Supreme Court in a petition for Special Leave to Appeal (Crl.) No.3961 of 2022, titled as Abdul Majeed Lone vs. Union Territory of Jamu and Kashmir, wherein petitioner facing trial for having been found in possession of 1100 grams commercial quantity of charas was enlarged on bail for suffering incarceration for over 2 years and 5 months, observing that there was no likelihood of completion of trial in near future; and order dated 12.10.2020, passed by Three Judges' Bench of the Supreme Court, in Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of ::: Downloaded on - 25/08/2023 20:34:51 :::CIS 5 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail for having been in detention of 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.
6. Learned counsel for the petitioner has referred pronouncement of the Supreme Court in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No.5769 of 2022, decided on 1.8.2022, whereby the accused, under Sections 21(c) and 37 of of NDPS Act, was ordered to be enlarged on bail after detention of 1 year and 7 months, observing that the trial was at a preliminary stage.
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7. Learned counsel for the petitioner has also placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Bengal, whereby accused having found in possession of Codeine mixture above commercial quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the trial.
8. Reliance has also been placed on order dated 10.11.2021 passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 5187 of 2021, titled as Kulwant Singh Vs. The State of Punjab, whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody undergone by him and the fact that trial would take time to conclude.
9. Learned counsel for the petitioner has also placed reliance upon order dated 7.12.2021 passed by the Supreme Court in Criminal Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of ::: Downloaded on - 25/08/2023 20:34:51 :::CIS 6 tablets of Tramadol X-225, was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms. However, in this case bail was granted by taking into consideration the fact that charge-sheet was filed on 23.9.2018 and thereafter even charges had not .
been framed nor trial had commenced till grant of bail to the petitioner, whereas manufacturer who sold the drug to the accused had been granted bail.
10. Learned counsel for petitioner has also relied upon order dated 5.8.2022 passed by the Supreme Court in Gopal Krishna Patra @ Gopalrusma vs. Union of India (Cr.
of Appeal No. 1169 of 2022), wherein accused in custody since 18.6.2020 was ordered to be enlarged on bail considering the facts and circumstances on record and rt length of custody undergone by him.
11. Learned counsel for petitioner has placed reliance upon judgment dated 13.1.2023 passed by this Bench in Cr.MP(M) No. 61 of 2023 titled Chet Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 11 months for recovery of 1.900 Kg. charas has been ordered to be enlarged on bail.
12. Learned counsel for petitioner has placed reliance upon judgment dated 29.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2703 of 2022 titled Ram Chand vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 11 months for recovery of 2 Kg. charas has been ordered to be enlarged on bail.
13. Learned counsel for petitioner has placed reliance upon judgment dated 22.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2521 of 2022 titled Prem Chand vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 9 months for recovery of 2.605 Kg. charas has been ordered to be enlarged on bail.
14. Learned counsel for petitioner has placed reliance upon judgment dated 28.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 349 of 2023 titled Kewal Ram vs. ::: Downloaded on - 25/08/2023 20:34:51 :::CIS 7 State of Himachal Pradesh wherein an accused under detention for the last 5 years and 4 months for recovery of 3.045 Kg. charas has been ordered to be enlarged on bail.
15. Learned counsel for petitioner has placed reliance .
upon judgment dated 12.12.2022 passed by this Bench in Cr.MP(M) No. 2324 of 2022 titled Rajesh Kumar vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 5 months for recovery of 3.125 Kg. charas has been ordered to be enlarged on bail.
16. Learned counsel for petitioner has placed reliance of upon judgment dated 12.1.2023 passed by Coordinate Bench in Cr.MP(M) No. 59 of 2023 titled Joseph Shobal vs. State rt of Himachal Pradesh and judgment dated 26.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2657 of 2022 titled Jeet Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 3-4 months for recovery of 3.382 Kg. charas have been ordered to be enlarged on bail.
17. Learned counsel for petitioner has placed reliance upon judgment dated 20.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 327 of 2023 titled Surender Singh vs. State of Himachal Pradesh wherein an accused under detention for the last 2 years and 7 months for recovery of 4.76 Kg. charas has been ordered to be enlarged on bail.
18. Learned counsel for petitioner has placed reliance upon judgment dated 23.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 323 of 2023 titled Tivalue @ Shiv Chand vs. State of Himachal Pradesh wherein an accused has been enlarged on bail who was under detention for the last 3 years and 4 months for recovery of 5 Kg. charas and out of 11 witnesses only 6 witnesses were examined.
19. Learned counsel for petitioner has placed reliance upon judgment dated 23.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2570 of 2022 titled Chet Ram vs. State of Himachal Pradesh; judgment dated 4.1.2023 ::: Downloaded on - 25/08/2023 20:34:51 :::CIS 8 passed by Coordinate Bench in Cr.MP(M) No. 2836 of 2022 titled Kaul Ram vs. State of Himachal Pradesh; judgment dated 04.01.2023 passed by Coordinate Bench in Cr.MP(M) No. 2837 of 2022 titled Krishan Chand vs. State of Himachal Pradesh wherein accused under detention for .
the last 3 years and 1 month for recovery of 5.679 Kg. charas have been ordered to be enlarged on bail, observing as under:-
"7. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instance case till of date. The question that arises for consideration is, can the provisions of Section 37 of the Act, be rt construed to have same efficacy, throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?
8. It is submitted by learned counsel for the petitioner that till date only eight witnesses have been examined and ten more witnesses remain to be examined, despite the fact that petitioner is in custody since 20.11.2019. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.
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12. In Gopal Krishna Patra @ Gopalrusma vs. Union of India (Cr. Appeal No. 1169 of 2022) decided on 05.08.2022, Hon'ble Surpeme 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, 27-AA, 28 read with 29 of Narcotic Drugs and Psychotropic Substances ::: Downloaded on - 25/08/2023 20:34:51 :::CIS 9 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 circumstance on record and the length of custody undergone by the appellant, in our view the case for bail is made out"
of .......
16. Reverting to the facts of the case, the rt petitioner is in custody since 20.11.2019 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that the delay in trial is attributable to the petitioner.""
12. Referring aforesaid pronouncements, learned counsel for petitioner has pleaded that petitioner is also entitled for bail on the same analogy.
13. Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which is not only ruining the individuals, but also damaging the families, society and Nation and therefore, petitioner is not entitled for bail.
14. Taking into consideration the entire facts and circumstances, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion ::: Downloaded on - 25/08/2023 20:34:51 :::CIS 10 that petitioner may be enlarged on bail in present case at this stage.
15. Accordingly, present petition is allowed and .
petitioner is directed to be enlarged on bail, in present case, subject to his furnishing personal bond in the sum of `1,50,000/-
with two sureties each in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as of may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioner/accused at the time of trial:-
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(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner shall 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 from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;::: Downloaded on - 25/08/2023 20:34:51 :::CIS 11
(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
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(viii) that the petitioner shall not leave the territory of India without prior permission; and
(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.
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16. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition rt on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
17. In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
18. Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.
Instructions/93-IV.7139 dated 18.03.2013.
19. Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
::: Downloaded on - 25/08/2023 20:34:51 :::CIS 1220. Petition is disposed of in aforesaid terms. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the .
trial Court/Special Judge, and the said Court shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
of (Vivek Singh Thakur), Judge.
August 25, 2023 (Purohit) rt ::: Downloaded on - 25/08/2023 20:34:51 :::CIS