Himachal Pradesh High Court
Ahi Chand vs State Of Himachal Pradesh on 12 April, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 540 of 2023
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Date of Decision: 12.04.2023
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Ahi Chand ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner Mr. Nand Lal Thakur, Advocate.
For the Respondent Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C.Verma,
r Additional Advocate Generals with
Mr. Rahul Thakur, and Mr. Ravi
Chauhan, Deputy Advocate
Generals.
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Sandeep Sharma, J. (Oral)
Bail petitioner, namely Ahi Chand, who is behind the bars since 26.09.2020, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No. 212 of 2020, dated 26.09.2020 under Section 20,29 of the Narcotic Drugs & Psychotropic Substances Act( for short 'Act') registered at Police Station Jogindernagar, District Mandi, Himachal Pradesh.
2. Status report filed by the respondent-State in terms of order dated 6.3.2023, reveals that on 26.09.2020, police party 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 12/04/2023 20:54:20 :::CIS 2present near Nag Chala bridge, stopped motorcycle bearing registration No.HP-32-B-3310 for checking, but since driver as well .
as pillion rider got perplexed after having seen the police and tried to run away, police after having associated independent witnesses, deemed it necessary to effect their search. Allegedly, police in the presence of independent witnesses recovered commercial quantity of contraband i.e. 1 Kg. 947 grams of charas from rucksack/pithu allegedly carried by present bail petitioner, who otherwise at that relevant time, was pillion rider. Since, no plausible explanation ever came to be rendered on record qua possession of aforesaid commercial quantity of contraband, police after having completed necessary codal formalities, lodged the FIR, as detailed hereinabove, against the bail petitioner and since then he is behind the bars. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, coupled with the fact that there is inordinate delay in conclusion of trial, prayer has been made on behalf of the petitioner for grant of regular bail.
3. While fairly admitting factum with regard to filing of Challan in the competent court of law, learned Additional Advocate General, states that though nothing remains to be recovered from the bail petitioner, but keeping in view gravity of the offence alleged to have been committed by him, he does not deserve any leniency.
He states that there is overwhelming evidence available on record ::: Downloaded on - 12/04/2023 20:54:20 :::CIS 3 suggestive of the fact that bail petitioner is drug peddler and in the event of his being enlarged on bail, he may not only flee from .
justice but may indulge in such activities again.
4. Having heard learned counsel for the parties and perused material available on record, this Court finds that commercial quantity of contraband came to be recovered from the bag being allegedly carried by bail petitioner in the presence of independent witnesses and as such, it cannot be said that he has been falsely implicated. However, having taken note of the fact that bail petitioner is behind the bars for more than 2 ½ years and till date 11 prosecution witnesses have been examined out of 23 prosecution witnesses, prayer made on behalf of the petitioner for grant of regular bail on account of delay in conclusion of the trial deserves to be considered .
5. No doubt, rigours of 37 of the Act are attracted in the present case on account of the fact that commercial quantity of contraband came to be recovered from the conscious possession of the bail petitioner. However, bare perusal of aforesaid provision nowhere suggests that this Court is estopped from considering the prayer for grant of bail in the cases involving commercial quantity of contraband, rather in such cases, court after having afforded due opportunity of hearing to public prosecutor can always proceed to grant bail, if it is satisfied that the bail petitioner has been falsely ::: Downloaded on - 12/04/2023 20:54:20 :::CIS 4 implicated and in the event of his being enlarged on bail he will not indulge in such activities again.
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6. True, it is that in the case at hand learned counsel for the petitioner has been not able to point out any circumstance suggestive of the fact that present bail petitioner has been falsely implicated, but this court cannot lose sight of the fact that bail petitioner is behind the bars for more than 2 ½ years and till date prosecution has not been able to examine all the witnesses. It has taken more than 2 ½ years for prosecution to examine 11 prosecution witnesses, meaning thereby considerable time is likely to be consumed in the examination of remaining witnesses.
Needless to say, right of speedy trial has been held to be constitutional right and infringement of the same would amount to violation of Article 21 of the Constitution of India.
7. Another question, which needs examination in the case at hand is "whether rigours of Section 37 of the Act would remain same throughout the trial or melt down with the progress of the trial". Since there is no control, if any, of accused in progress of trial, rather he is totally dependent upon steps, if any, taken by the prosecution for early conclusion of the trial, incarceration of accused in jail for indefinite period during the trial would definitely amount to pre-trial conviction, which is totally impermissible in law.
::: Downloaded on - 12/04/2023 20:54:20 :::CIS 58. 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 r 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).
9. Reliance is placed upon judgment passed by Hon'ble Apex Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:
"18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being ::: Downloaded on - 12/04/2023 20:54:20 :::CIS 6 completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an .
approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
10. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
"2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh.::: Downloaded on - 12/04/2023 20:54:20 :::CIS 7
The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed."
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11. In the aforesaid judgment, Hon'ble Apex Court has held that while considering the prayer for grant of bail, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
12. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.
13. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till ::: Downloaded on - 12/04/2023 20:54:20 :::CIS 8 the time, he/she is proved guilty in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be .
established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional 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.
14. Needless to say, 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail.
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.
15. 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 ::: Downloaded on - 12/04/2023 20:54:20 :::CIS 9 for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the .
aforesaid judgment that a person is believed to be innocent until found guilty.
16. 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.
17. 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 ::: Downloaded on - 12/04/2023 20:54:20 :::CIS 10 the accused, circumstances which are peculiar to the accused involved in that crime.
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18. 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.
19. r In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000/-
with two local sureties in the like amount each to the satisfaction of learned 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.
(e) He shall surrender his passport, if any, before the investigating agency.::: Downloaded on - 12/04/2023 20:54:20 :::CIS 11
20. 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.
21. 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.
22. r A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.
(Sandeep Sharma) Judge 12th April, 2023 (shankar) ::: Downloaded on - 12/04/2023 20:54:20 :::CIS