Gujarat High Court
Sujal Vijaybhai Patel vs State Of Gujarat & on 5 September, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/20602/2017 ORDER
-IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 20602 of 2017
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SUJAL VIJAYBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ANSHIN DESAI, SR. ADVCOATE, MR VAIBHAV V GOSWAMY,
ADVOCATE for the Applicant(s) No. 1
MR SUDHIR M MEHTA, ADVOCATE for the Respondent(s) No. 2
MS SS PATHAK, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/09/2017
ORAL ORDER
1. This is a successive bail application, under Section 439 of the Code of Criminal Procedure, 1898 (for short, 'the Code'), for regular bail.
2. The applicant is an accused in the case registered as DRI/AZU/NDPS/2011 1 of 2011, (now, NDPS Sessions Case No. 5 of 2012), where he is being prosecuted for the offence punishable under Sections 22, 23, 24, 25, 27A, 28, 29, 30, 38 read with Section 8c of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' herein after) and Section 120B of the Indian Penal Code ('IPC' in brief).
3. The applicant presently is in the Page 1 of 45 HC-NIC Page 1 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER judicial custody since his arrest on 16.12.2011.
4. The first bail application of the applicant being Criminal Misc. Application No. 14483 of 2012 was dismissed by this Court vide order dated 29.01.2013, after the detailed examination of the facts, on merits since this Court had found no case for consideration.
5. This was challenged before the Hon'ble Apex Court. The Apex Court was already considering the larger issue, essentially in relation to the Section 8 and Rules 63 and 64 of the NDPS Rules are substantial rules and whether, they are in the nature of exceptions to the general scheme of Chapters-6 and 7, which contain the list of narcotic and psychotropic substances.
5.1 It is the say of the applicant that his case was tagged with a group of matters, which was decided by the Apex Court and the same was not entertained in wake of the final findings rendered by it.
6. Relevant findings and conclusion deserve reproduction at this stage.
"34. On the above analysis of the provisions of chapters VI and VII of Page 2 of 45 HC-NIC Page 2 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER the 1985 Rules, we are of the opinion both these chapters contain Rules permitting and regulating the import and export of narcotic drugs and psychotropic substances other than those specified in the Schedule-I to the 1985 Rules subject to various conditions and procedure stipulated in Chapter VI. Whereas Chapter VII deals exclusively with various other aspects of DEALING IN psychotropic substances and the conditions subject to which such DEALING IN is permitted. We are of the opinion that both Rules 53 and 64 are really in the nature of exception to the general scheme of Chapters VI and VII respectively containing a list of narcotic drugs and psychotropic substances which cannot be dealt in any manner notwithstanding the other provisions of these two chapters. We are of the clear opinion that neither Rule 53 nor Rule 64 is a source of authority for prohibiting the DEALING IN narcotic drugs and psychotropic substances, the source is Section 8. Rajesh Kumar Gupta's case in our view is wrongly decided.
35. In view of our conclusion, the complete analyssi of the implications of Section 8015 of the Act is not really called for in the instant case. It is only required to be stated that essentially the Drugs & Cosmetics Act, 1940 deals with various operations of manufacture, sale, purchase etc. of drugs generally whereas Narcotic Drugs and Psychotropic Substances Act, 1985 deals with a more specific class of drugs and, therefore, a special law Page 3 of 45 HC-NIC Page 3 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER on the subject. Further the provisions of the Act operate in addition to the provisions of 1940 Act.
36. In the light of our above conclusion the correctness of the orders impugned in all the Criminal Appeals is normally Section 80.
Application of the Drugs and Cosmetics Act, 1940 not barred. The provisions of the this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Drugs and Cosmetics Act, 1940 (23 of 1940) or the rules made thereunder required to be considered by the Bench of appropriate strength. However, in view of the fact that most of these matters are old matters [pertaining to years 2006 to 2013], we deem it appropriate to remit all these matters to the concerned High Court for passing of appropriate orders in light of this judgment."
7. Once again, the applicant approached this Court through the jail by preferring Criminal Misc. Application No. 19670 of 2014, which also was rejected vide order dated 08.05.2015 on the ground that, at length, the matter was considered on merits and there would not be any requirement for giving any separate reasons, except, those already given, while rejecting the earlier application for regular bail.
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8. The applicant again moved this Court by preferring an application for regular bail being Criminal Misc. Application No. 3107 of 2017, this was essentially on the ground of parity with the concerned that he had approached this Court, which came to be disposed of on 02.03.2017.
8.1 It is a matter of record that the co- accused, namely Abhijit Prabhakar Konduskar, had also preferred Criminal Misc. Application No. 17689 of 2014, which was rejected by this Court on 27.04.2016. Challenging such order before the Apex Court by preferring Special Leave Petition (Criminal) No. 3857 of 2016, Abhijit Prabhakar Konduskar had sought bail.
8.2 Report of the Directorate of Central Forensic Science Laboratory (in brief 'CFSL') dated 04.11.2015 and the report of CFSL-2015/CC- 899 was depended upon, which indicated that the chemical in question was not Methamphetamine. The Apex Court, therefore, enlarged the co-accused on bail and also directed further that the accused, since, was in custody from 17.11.2012, the matter must be conducted expeditiously and the trial Court should render the judgment expeditiously. The co-accused were also directed to cooperate with the Page 5 of 45 HC-NIC Page 5 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER trial with a specific mandate to the trial Court to complete the trial within one year vide its order dated 25.07.2016.
9. Mr. Abhijit Prabhakar Konduskar, one of the co-accused, preferred quashing petition under Section 482 of the Code being Criminal Misc. Application No. 32518 of 2016 and vide order dated 28.11.2017, this Court has stayed the trial qua him. Another co-accused, namely Mr. Pramod Narhari Manjrekar, also has been granted bail by the Session Court and the DRI has not challenged the said order. He has also preferred quashing petition and the High Court has also granted interim relief and stayed the trial qua him. Thus, three co-accused have been bailed out and qua two of them, trial has been stayed.
10. On the ground of parity, the present applicant had moved this Court on application for bail once again, which was not entertained on the ground that he was found involved not only Methaphetamine Hydrochloride but also for ketamine and alprazolam packets, which were, prima facie, recovered at the time of panchnama.
Some of the relevant findings and the conclusions drawn, while considering the case of Page 6 of 45 HC-NIC Page 6 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER the applicant on the ground of parity and delay in the trial are as follows:
"28. From the affidavit filed by Respondent No.2 today, it is clear that so far as co-accused, Mr. Abhijit Konduskar is concerned, he was alleged to have manufactured huge quantity containing methaphetamine hydrochloride, which was negatived by the CFSL, when all exhibits were sent to CFSL resulted in absence of methaphetamine. Again there is no involvement of his so far as ketamine hydrochloride and alprazolam are concerned. So far as the aspect of seizure of Ketamine Hydrochloride from Mr. Abhijit Konduskar is concerned, it is orally stated on behalf of Respondent No.2 that same is being looked after by DRI, Mumbai, and it is not connected with the seizure effected in this matter.
29. So far as the other co-accused. Dr. Pramod Narhari Manjrekar is concerned, according to the DRI, he is alleged to have procured methaphetamine hydrochloride only and for procuring both ketamine hydrochloride and alprazolam, a specific role is attributed to another co-accused, namely Kapil Arora, whose bail application is also rejected by this Court. In such a view of the matter, the case of the petitioner on the ground parity cannot be considered. His employee / manager not only is faced prima facie with the 37 kilograms of methaphetamine hydrochloride but Page 7 of 45 HC-NIC Page 7 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER also ketamine hydrochloride and alprazolam packets. Of course, on the ground of CFSL report negating presence of methaphetamine hydrochloride, he would receive benefit, had that been the only seizure. With seizure of ketamine and alprazolam packets from his ayurvedic firm and with no negative report in relation to these two substances, his case cannot be equated with those co-accused, who are enlarged on regular bail. His case is similar to that of Mr. Kapil Arora, whose bail application, even though, rejected prior to the order of the Apex Court in July, 2016, contain similar facts.
30. Resultantly, this application is DISMISSED with a reiteration to the trial Court to adhere to the time- limit set by the Apex Court and to complete the trial within one year.
31. It shall, however, be open to the applicant to APPROACH this Court again in case of breach of the above direction issued by the Apex Court."
11. Present application is preferred essentially on the ground of delay in proceeding with the Sessions trial, with an emphasis that the direction issued by the Apex Court of completing the trial within one year has expired on 13.07.2017. This Court also had directed the trial Court concerned, at the time of rejecting the last application of bail to adhere to the time-limit set by the Apex Court, and therefore, Page 8 of 45 HC-NIC Page 8 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER it is urged that the delay should be the ground for the Court to consider the request for regular bail.
12. Learned Sr. Advocate, Mr. Anshin Desai, with learned Advocate, Mr. Vaibhav Goswami, appearing for the applicant has made his submissions at length. It is fervently urged that without touching any of the aspects on merits, only on the ground of delay in conducting the trial, the Court should accede to the request for grant of bail. It is, further, urged that two of the accused, who have been bailed out have also succeeded in getting an order in their favour of staying trial qua them. There are others, who are bailed out and have been causing delay, which has resulted in the applicant being incarcerated for seven long years. It is urged that there is no occasion, where the present applicant has contributed to such a delay. Many a times it is the prosecution, which has sought time from the Court and yet, the fact remains that the time-limit set by the Apex Court is not adhered to and there is no surety even from the report that has been received from the Registrar, City Civil & Session Court, as to when the trial is likely to be completed. He, therefore, has urged that the applicant is a resident of Ahmedabad residing with his family and is also Page 9 of 45 HC-NIC Page 9 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER having properties in Ahmedabad. He also has certain health issues, which are though being attended to, in some little ways by the jail authorities, but, that also is an additional ground, which should weigh with the Court in allowing this application. Learned Counsel has sought to rely upon the following authorities:
(1) 'HUSSAINARA KHATOON AND OTHERS VS.
HOME SECRETARY, STATE OF BIHAR', (1980) SCC 1981 (2) 'SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONERS Vs. UNION OF INDIA AND OTHERS', (1994) 6 SCC 731, (3) 'STATE, CBI/SPE, NEW DELHI VS. PAL SINGH AND ANOTHER', (2001) 1 SCC 247, (4) 'AKHTARI BI (SMT.) VS. STATE OF M.P.', (2001) 4 SCC 355, (5) 'SANJAY CHANDRA VS. CBI', (2012) 1 SCC 40, (6) 'DIPAK SUBHASHCHANDRA MEHTA VS. CBI AND ANOTHER, (2012) 4 SCC 134, Page 10 of 45 HC-NIC Page 10 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER (7) 'SANGHIAN PANDIAN RAJKUMAR VS. CBI AND ANOTHER' (2014) 12 SCC 23, (8) 'BIPIN SHANTILAL PANCHAL VS. STATE OF GUJARAT AND ANOTHER', (2000) 1 GLR 355,
13. Learned Advocate, Mr. Sudhir Mehta, who is one of the Panel Advcoates of the DRI, has strongly urged this Court not to consider the case of the present petitioner. According to him, 12 witnesses have already been examined and the trial is proceeding at a desirable pace. He, further, has urged that it is an extremely serious offence and twice, on merits, this Court rejected his application, and therefore, in such matters unless the Court is satisfied that the applicant is not involved in the offence under Section 37 of the NDPS Act no discretion requries to be exercised. Prima facie, his involvement is believed at the time of rejecting his application on earlier occasions. So far as the case of the delay in trial, which has been projected before this Court is concerned, he has urged that the delay should also not furnish any ground as the consideration to be borne in mind, at the time of deciding application for regular bail, is as enumerated in various decision by the Apex Court and of this Court. According to him, the said Page 11 of 45 HC-NIC Page 11 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER decisions would not permit grant of regular bail to the present applicant. He emphasized that the nature of accusations and the severity of punishment are the grounds, also would not warrant any exercise of discretion. to grant regular bail in favour of the present applicant.
14. This Court had called for the medical report by requesting the learned APP, Ms. Shruti Pathak, to get the details from the jail authority and such a report has been sent by the Jail Superintendent, which certifies that on examination of the applicant, he had complained of altering bowl habit and the issues of insomnia. His past history shows he was referred to gestro department, Civil Hospital, several times for complaint of altered bowl habit. However, the overall examination of the applicant resulted into his opining that the treatment and the care can be taken at the Civil Hospital, Ahmedabad.
15. This Court had called for the report of status of sessions trial from the Registrar of the City Civil and Sessions Court, Ahmedabad, who, upon the instructions received from the learned Presiding Officer, conducting the trial of Sessions Case No. 5 of 2012, has confirmed that in all, 13 witnesses have been examined by Page 12 of 45 HC-NIC Page 12 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER the Court and out of the 6 accused, trial is stayed qua accused No.3. Since, there are 6 accused and the trial against accused No.3 is stayed by this Court vide its order dated 22.12.2016 passed in Criminal Misc. Application No. 32518 of 2016. All the witnesses concerning the accused Nos. 1 and 2, which includes the present applicant, have been examined. However, the witnesses concerning accused Nos. 3 and 5 are yet to be examined. It is not possible for the trial Court to ascertain the time likely to be taken to complete the trial, as there are 43 witnesses shown in the complaint, who are yet to be examined by the prosecution. It is further added that the trial is being proceeded on priority basis, but, due to non-cooperation on the part of the accused also, it is being delayed. The next date of hearing was scheduled on 01.09.2017.
15.1 In other words, despite the best efforts made by the trial Court of giving this matter a top priority for the reasons stated in the said report, and also, considering the other ground realities from all circumstances, as narrated in the report, the learned Presiding Officer is unable to qualify the time for completing the said trial.
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16. Having thus heard the learned Counsels on both the sides and also on having thoroughly considered the material on record so also the report received from the Registrar, City Civil and Sessions Court. At the outset, it is required to be mentioned that thrice earlier, the case of the applicant has been considered on merits. Two times, when his application was independently and extensively examined on merits and the third time when his case was equated with other co-accused, who has been bailed out by the Hon'ble Apex Court.
17. In the present application, therefore, this Court would not enter into the merits of the matter at all. Predominantly and exclusively on the ground of delay in proceedings of the trial that this application is being considered.
At the outset, various decisions reiterating the right of speedy trial equating the same with the right to life and liberty are profitably discussed hereafter.
18. In case of 'BIPIN SHANTILAL PANCHAL VS. STATE OF GUJARAT AND ANOTHER' (Supra), the case was under the NDPS Act, where the accused also was facing the serious charges under the said Act and the trial was delayed for the reasons not Page 14 of 45 HC-NIC Page 14 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER attributable to the accused, who remained in custody for 7 years.
18.1 This Court granted reliefs including the relief of releasing accused on bail, relying on the various decision of the Apex Court, where, it emphasized a need for speedy trial in case of under-trial prisoners. It had also contemplated grant of bail for a limited time period to ensure further monitoring and check on the conduct.
19. In case of 'SANGHIAN PANDIAN RAJKUMAR VS. CBI AND ANOTHER' (Supra), the Apex Court was considering the case of the police officer, who was allegedly involved in commission of 3 murders and who was in the judicial custody for 7 years. When the Court saw no possibility of conclusion of trial within the reasonable time and many of the co-accused had been granted bail by the trial Court and the High Court, the Apex Court, ordered him to be released, subject to certain stringent conditions.
20. In case of 'DIPAK SUBHASHCHANDRA MEHTA VS. CBI AND ANOTHER (Supra), there was delay in trial resulting in incarceration of the accused for indefinite period. The Court held this to be in violation of Article 21 of the Constitution of India. Because of serious economic offence he was Page 15 of 45 HC-NIC Page 15 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER in jail and moreover, the appellant was also suffering from several diseases and was in the judicial custody for a long time. The Apex Court exercised its discretion by holding that such discretion requires to be exercised judiciously and at the stage of granting bail, a detailed examination of evidence and elaborate documentation of merits of case need not be undertaken, however, there is a need to indicate in such orders reasons for for prima facie concluding why bail was being granted, more particularly, when the accused is charged of having committed a serious offence:
"33. Considering the present scenario and there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.03.2010, except the period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated.
34. As posed in the Sanjay Chandra's case (supra) we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons Page 16 of 45 HC-NIC Page 16 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER mentioned above.
35. As observed earlier, we are conscious of the fact that the present appellant along with the others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the fact that though the Investigating Agency has completed the investigation and submitted the charge sheet including additional charge sheet, the fact remains that the necessary charges have not been framed, therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents including the certificate of the Medical Officer, Central Jail Dispensary, we are of the view that the appellant is entitled to an order of bail pending trial on stringent conditions in order to safe guard the interest of the CBI.
21. In case of 'SANJAY CHANDRA VS. CBI', (2012) 1 SCC 40, the Apex Court while considering the question of bail under Section 437 and 439 of the Code, has held that relevant consideration in granting conditional bail are (1) gravity of the alleged offence and (2) severity of the punishment prescribed under the law. Both the parameters are to be considered simultaneously.
Gravity alone cannot be a ground to deny the
bail. Protection of the personal liberty against
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securing attendance of the accused at the time
of trial and hardship caused to an individual on account of the detention before the conviction are some of the grounds which need to be borne in mind. The relevant observations read thus:
"21. In bail applications, generally, it has been laid down from the earliest times that the 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. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any Page 18 of 45 HC-NIC Page 18 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un- convicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. In the instant case, as we have already noticed that the "pointing finger of accusation"
against the appellants is `the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to Page 19 of 45 HC-NIC Page 19 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice."
25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.
26. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42, observed that "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody Page 20 of 45 HC-NIC Page 20 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so."
22. The Apex Court in the case of 'SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONERS Vs. UNION OF INDIA AND OTHERS', (1994) 6 SCC 731, was considering the right of an under- trial prisoner of his speedy trial to hold that deprivation of the personal liberty without ensuring speedy trial violates Article 21 of the Constitution. The Apex Court further held as under:
"... We, therefore, direct as under:
(i)Where the undertrial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment Page 21 of 45 HC-NIC Page 21 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount.
(ii)Where the undertrial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his bail amount shall in no case be less than Rs 50,000 with two sureties for like amount.
(iii)Where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an undertrial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.
(iv) Where an undertrial accused is charged for the commission of an offence punishable under Sections 3 1 and 3 1 A of the Act, such an undertrial shall not be entitled to be released on bail by virtue of Page 22 of 45 HC-NIC Page 22 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER this order.
The directives in clauses (i), (ii) and (iii) above shall be subject to the following general conditions:
(i) The undertrial accused entitled to be released on bail shall deposit his passport with the learned Judge of the Special Court concerned and if he does not hold a passport he shall file an affidavit to that effect in the form that may be prescribed by the learned Special Judge. In the latter case the learned Special Judge will, if he has reason to doubt the accuracy of the statement, write to the Passport Officer concerned to verify the statement and the Passport Officer shall verify his record and send a reply within three weeks. If he fails to reply within the said time, the learned Special Judge will be entitled to act on the statement of the undertrial accused;
(ii)the undertrial accused shall on being released on bail present himself at the police station which has prosecuted him at least once in a month in the case of those covered under clause (i), once in a fortnight in the case of those covered under clause (ii) and once in a week in the case of those covered by clause
(iii), unless leave of absence is obtained in advance from the Special Judge concerned;
(iii)the benefit of the direction in clauses Page 23 of 45 HC-NIC Page 23 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER
(ii) and (iii) shall not be available to those accused persons who are, in the opinion of the learned Special Judge, for reasons to be stated in writing, likely to tamper with evidence or influence the prosecution witnesses;
(iv)in the case of undertrial accused who are foreigners, the Special Judge shall, besides impounding their passports, insist on a certificate of assurance from the Embassy/High Commission of the country to which the foreigner-
accused belongs, that the said accused shall not leave the country and shall appear before the Special Court as and when required;
(v)the undertrial accused shall not leave the area in relation to which the Special Court is constituted except with the permission of the learned Special Judge;
(vi)the undertrial accused may furnish bail by depositing cash equal to the bail amount;
(vii)the Special Judge will be at liberty to cancel bail if any of the above conditions are violated or a case for cancellation of bail is otherwise made out; and
(viii)after the release of the undertrial accused pursuant to this order, the cases of those under- trials who have not been released and are in jail will be accorded priority and the Special Court will proceed with them as provided in Section 309 of the Code."
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23. In case of 'STATE, CBI/SPE, NEW DELHI VS. PAL SINGH AND ANOTHER' (Supra), it was the charge of murder on the accused, who were before the Apex Court and the Court was considering the question of grant of bail to hold that where the trial could not commence for a long time and the accused was not responsible for such delay, it would be travesty of justice to keep them under further detention as under-trial prisoners.
24. In 'AKHTARI BI (SMT.) VS. STATE OF M.P.' (Supra), it was the case of appeal against conviction pending in High Court for long and consequently appellant convict was languishing in jail for several years. Considering the special circumstances of the case, where the appellant was an old and infirm lady and other unfortunate circumstances in her life, she was granted bail. While so doing, the Apex Court observed that expeditious justice is a fundamental right, which flows from Article 21 of the Constitution of India and prolonged delays in disposal of the trials and thereafter appeals, criminal cases, for no fault of the accused, confers right upon him / her to get the bail.
25. In 'HUSSAINARA KHATOON AND OTHERS VS. HOME SECRETARY, STATE OF BIHAR' (Supra), the Court Page 25 of 45 HC-NIC Page 25 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER deprecated the pre-trial detention by terming the same as unreasonable and violative of Article 21 of the Constitution of India.
"3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re- enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail.
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The poor find it difficult to
furnish bail even without sureties because very often the amount of the bail fixed by the courts is so 175 unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is hero that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The Page 27 of 45 HC-NIC Page 27 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of one of us, Mr. Justice Bhagwati, emphasised this glaring inequality in the following words:
"The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount 176 of the bail is fixed by the Magistrate is not high, for a Page 28 of 45 HC-NIC Page 28 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount."
The Gujarat Committee also pointed out how the practice of fixing the amount of bail with reference to the nature of the charge without taking into account relevant factors, such as the individual financial circumstances of the accused and the probability of his fleeing before trial, is harsh and oppressive and discriminates against the poor:
"The discriminatory nature of the bail system becomes all the more acute by reason of the mechanical way in which it is custormarily operated. It is no doubt true that theoretically the Magistrate has broad discretion in fixing the amount of bail but in practice it seems that the amount of bail depends almost always on the seriousness of the offence. It is fixed according to a schedule related to the nature of the charge. Little weight is given either to the probability that the accused will attempt to flee before his trial or to his individual financial circumstances, the very factors which seem most relevant if the purpose of bail is to assure the appearance of the accused at the trial. The result of ignoring these factors and fixing the amount of bail mechanically having regard only to the seriousness of the offence is Page 29 of 45 HC-NIC Page 29 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER to discriminate against the poor who are not in the same position as the rich as regards capacity to furnish bail. The Courts by ignoring the differential capacity of the rich and the poor to furnish bail and treating them equally produce inequality between the rich and the poor: the rich who is charged with the same offence in the same circumstances is able to secure his release while the poor is unable to do so on account of his poverty. These are some of the major defects in the bail system as it is operated to-day."
The same anguish was expressed by President Lyndon B. Johnson at the time of signing the Bail Reforms Act, 1966:
"Today, we join to recognize a major development in our system of criminal justice: the reform of the bail system.
This system has endured-archaic, unjust and virtually unexamined- since the Judiciary Act of 1789. The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.
How is that purpose met under the present system ? The defendant with means can afford to pay bail. He can afford to buy his freedom. But poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.
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He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee before trial.
He stays in jail for one reason only-because he is poor....."
The bail system, as it operates today, is a source of great hardship to the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich to obtain pretrial release without jeopardizing the interest of justice.
4. It is high time that our Parliament realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing. Ours is a socialist republic with social justice as the signature tune of our constitution and Parliament would do well to consider whether it would not be more consonant with the ethos of our constitution that instead of risk of financial loss, other relevant considerations such as Page 31 of 45 HC-NIC Page 31 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER family ties, roots in the community, job security, membership of stable organisations etc., should be the determinative factors in grant of bail and the accused should be in appropriate cases be released on his personal bond without monetary obligation. Of course, it may be necessary in such a case to provide by an amendment of the penal law that if the accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action. But even under the law as it stands today the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good. The new insight into the subject of pretrial release which has been developed in socially advanced countries and particularly the United States should now inform the decisions of our Courts in regard to pretrial release. If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused 178 on his personal bond. To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:
1. The length of his residence in Page 32 of 45 HC-NIC Page 32 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER the community.
2. his employment status, history and his financial condition,
3. his family ties and relationships,
4. his reputation, character and monetary condition,
5. his prior criminal record including any record or prior release on recognizance or on bail,
6. the identity of responsible members of the community who would vouch for his reliability.
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and
8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.
If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-
appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there Page 33 of 45 HC-NIC Page 33 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it 179 fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be very harsh and oppressive if he is required to Page 34 of 45 HC-NIC Page 34 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER satisfy the court-and what we have said here in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. We have no doubt that if the system of bail, even under the existing law, is administered in the manner we have indicated in this judgment, it would go a long way towards relieving hardship of the poor and help them to secure pretrial release from incarceration. It is for this reason we have directed the undertrial prisoners whose names are given in the two issues of the Indian Express should be released forthwith on their personal bond. We should have ordinarily said that personal bond to be executed by them should be with monetary obligation, but we directed as an exceptional measure that there need be no monetary obligation in the personal bond because we found that all these persons have been in-jail without trial for several years, and in some cases for offences for which the punishment would in all probability be less than the period of their detention and moreover, the order we were making was merely an interim order. The peculiar facts and circumstances of the case dictated Page 35 of 45 HC-NIC Page 35 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER such an unusual course.
5. There is also one other infirmity of the legal and judicial system which is responsible for this gross denial of justice to the undertrial prisoners and that is the notorious delay in disposal of cases. It is a bad reflection on the legal and judicial system that the trial of an accused should not even commence for a long number of years. Even a delay of one year in the commencement of the trial is bad enough; how much worse could it be when the delay is as long as 3 or 5 or 7 or even 10 years. Speedy trial is of the essence of criminal justice and there can be no doubt that delay in trial by itself constitutes denial 180 of justice. It is interesting to note that in the United States, speedy trial is one of the constitutionally guaranteed rights. The Sixth Amendment to the Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." So also Article 3 of the European Convention on Human Rights provides that:
"every one arrested or detained- shall be entitled to trial within a reasonable time or to release pending trial."
We think that even under our Constitution, though speedy trial is not specifically enumerated as a Page 36 of 45 HC-NIC Page 36 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but that the procedure should be "reasonable, fair and just". If a person is deprived of his liberty under a procedure which is not "reasonable, fair or just", such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonable quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article
21. The question which would, Page 37 of 45 HC-NIC Page 37 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released unconditionally freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute violation of his fundamental right under Article 21 ? That is a question we shall have to consider when we hear the writ petition on merits on the adjourned date. But one thing is certain and we cannot impress it too strongly on the State Government that it is high time that the State Government realised its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases. We may point out that it would not be enough merely to establish more courts but the State Government would also have to man them by competent judges and whatever is necessary for the purpose of recruiting competent judges, such as improving their conditions of service, would have to be done by the State Government, if they want to improve the system of administration of justice and make it an effective instrument for reaching justice to the large masses of people for whom justice is to-day a meaningless and empty word.
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26. This Court in case of 'SOHIL SAFI
MOHAMMAD VOHRA VS. STATE OF GUJARAT', 2002 (1) GLR 667, was considering the case of the person, who was allegedly involved in the offence under the NDPS Act, where the Court, while considering his application for regular bail under Section 439 of the Code, held that while granting the bail, this Court has to bear in mind the nature of accusations, the nature of evidence in support thereof, the severity of punishment, his behaviour in jail, the circumstances, which are peculiar to the facts of the case, reasonable possibility of securing the presence of the accused at the time of trial and the reasonable apprehension of the witnesses being tempered. The police papers before the Court had prima facie disclosed that the accused sold charas to the main accused. The Court did not chose to exercise discretion on merits.
27. This Court in Criminal Misc. Application No. 3297 of 2004 in case of 'HABIBKHAN USMANKHAN PATHAN VS. STATE OF GUJARAT AND ANOTHER', was considering the statement of the accused recorded under Section 67 of the NDPS Act. When there was a prima facie involvement found of the applicant, the Court rejected the successive bail application, as there was no new reason nor any Page 39 of 45 HC-NIC Page 39 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER new grounds were canvassed. Even this Court went on to the extent to hold that the statement recorded under Section 67 of the Code could be gone into for determining the prima facie involvement of the petitioner while deciding the bail application.
28. So far as the remaining two judgments cited by the learned Counsel for the DRI are concerned, they would be required to be considered, had this Court deciding this application for regular bail on merits. As stated at the outset, this matter, on merits is not to be gone into for the simple reason that earlier, on three occasions, such applications were rejected by this Court.
29. Noticing the fact that the present applicant is in jail from December, 2011. It is a matter of record, that some of the co-accused have already been released on regular bail by the Apex Court and the benefit of parity has not been made available to the present applicant. While releasing some of those persons on regular bail, the Apex Court had directed the learned Presiding Office of the trial Court to complete trial within a period of one year vide its order dated 29.07.2016. This Court also, while rejecting the application of present applicant on the ground of Page 40 of 45 HC-NIC Page 40 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER parity, had requested the trial Court to adhere to the time-limit set by the Apex Court and thus, had reiterated the need of completing the same within a period of one year. In wake non- compliance of such directions that the applicant has approached this Court. It is also apparent from the record sheet of the NDPS Sessions Case the report of Registrar, City Civil & Sessions Court that in all 12 witnesses so far examined.
30. This Court is conscious of the fact that the applicant is alleged of serious offences.
31. The report of the learned Registrar, City Civil & Sessions Court, Ahmedabad, is further indicative of the fact that qua the present applicant and another accused substantial evidence is over. However, such qua the rest of the accused and those of them against whom the trial has been stayed by this Court, examination of other witnesses which the prosecution may desire to examine, will take a longer time. The directions issued by the Apex Court not only have not been adhered to it is unlikely that the trial would be completed in near future.
32. In above view of the matter, bearing in mind the various decisions, which have been discussed herein above and more particularly, the Page 41 of 45 HC-NIC Page 41 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER decision rendered in the case of 'SUPREME COURT LEGAL AID COMMITTEE REPRESENTING UNDERTRIAL PRISONERS Vs. UNION OF INDIA AND OTHERS' (Supra) so also other cases, where it is emphasized that not prosecuting those speedily, who are incarcerated for long would be in violation of Article 21 of the Constitution of India. As the applicant is in jail for nearly 7 years, on the ground of delay in completion of trial, his case is being considered. This Court also notices that the applicant had been released on temporary bail, on couple of occasions, and no untoward incident is reported. The DRI also has not whispered anything against him for his conduct or behaviour, while he was granted temporary bail and hence also, his case warrants indulgence in the following manner.
33. Although, this application is made for regular bail under Section 439 of the Code, bearing in mind the overall facts and circumstances of the case and particularly bearing in mind ongoing trial and serious nature of offences alleged keeping in mind the decision of this Court in 'BIPIN SHANTILAL PANCHAL (II) VS. STATE OF GUJARAT AND ANOTHER', 2002 (1) GLR 355, this Court, therefore, deems it fit to exercise discretion in favour of the present applicant by releasing him instead on temporary Page 42 of 45 HC-NIC Page 42 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER bail for a period of SIX MONTHS only instead of granting regular bail permanently with certain stringent conditions and with a LIBERTY to approach this Court on expiry of the aforesaid period, where the Court would have a scope to review the circumstances and decide the further course of action.
34. Resultantly, this application is ALLOWED. The applicant is ordered to be RELEASED on regular bail on his furnishing one solvent surety of Rs.1,00,000/- (One Lakh) with TWO SURETIES of the like amount to the satisfaction of the trial Court concerned and on conditions that the applicant shall:
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week from today;
(d) not leave State of Gujarat without prior permission of the trial Court concerned;
(e) MARK PRESENCE before the DRI on the first Page 43 of 45 HC-NIC Page 43 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER day of every English calender month, over and above regularly attending the Court proceedings;
(f) furnish the present address of residence to the Investigating Officer and also to the trial Court concerned at the time of execution of the bond and shall not change the residence without prior permission of this Court;
(g) not undertake his regular business of courier service, while on temporary bail;
35. Indulgence / involvement in any other offence shall AUTOMATICALLY cancel his bail and it would also entitle the prosecution to move for necessary directions.
36. The Authorities will release the applicant only if not required in connection with any other offence for the time being.
37. If breach of any of the above conditions is committed, the trial Court concerned will be free to issue warrant or take appropriate action in the matter, including of cancellation of bail.
38. Bail bond to be executed before the Page 44 of 45 HC-NIC Page 44 of 45 Created On Sun Sep 10 04:36:05 IST 2017 R/CR.MA/20602/2017 ORDER lower court having jurisdiction to try the case.
39. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
40. Rule is made absolute to the aforesaid extent. Direct service is Permitted.
(MS SONIA GOKANI, J.) UMESH Page 45 of 45 HC-NIC Page 45 of 45 Created On Sun Sep 10 04:36:05 IST 2017