Himachal Pradesh High Court
Hariya vs State Of H.P on 28 September, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.2278/2023 Decided on: 28.09.2023 .
Hariya ......Petitioner
Versus
State of H.P. ......Respondent
.......................................................................................... Coram Ms. Justice Jyotsna Rewal Dua, Judge.
of Whether approved for reporting?1 For the petitioner : Mr. Hemant Thakur, Advocate.
For the respondent :
rt Mr. Pranay Pratap Singh, Additional Advocate General with Mr. Arsh Rattan & Mr. Sidharth Jalta, Deputy Advocates General.
Jyotsna Rewal Dua, J The petitioner seeks regular bail in FIR No. 194/2019, dated 07.12.2019, registered under Section 20 of the Narcotics Drugs and Psychotropic Substances Act (in short 'NDPS Act') at Police Station, Chowari, District Chamba, H.P.
2. Respondent has filed the status report.
3. According to the respondent, on 07.12.2019, a police party was on routine patrol duty within the area of its jurisdiction. At around 1.30 P.M., the police personnel noticed two pedestrians coming from Sihunta side; One of them was carrying a backpack on his shoulder; On seeing the police party, the person carrying backpack 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 28/09/2023 20:36:59 :::CIS 2 got perplexed and threw it on the roadside; Both the persons retraced their steps backwards at fast pace; Their actions raised suspicion in .
the mind of the police personnel; They were apprehended and queries were made from them; The person carrying the backpack disclosed his name as Hariya (bail petitioner) and his accomplice gave his name as Purshotam; The backpack thrown by the petitioner was got lifted by of the police personnel through him; Its search was carried out in accordance with law; The search led to recovery of 1.572 kgs of rt cannabis; The recovery led to registration of the FIR in question and arrest of Hariya (bail petitioner) and Purshotam (co-accused).
As per the status report, final report under Section 173 Cr.P.C. was presented on 18.05.2020 in the Court of learned Sessions Judge Chamba. Status report further records that as of now, out of total 22 witnesses, statements of 15 witnesses have been recorded.
The matter is now fixed for 19.10.2023 for recording the statements of three more witnesses.
4. Learned counsel for the petitioner praying for enlarging the petitioner on regular bail submitted that the petitioner had been falsely implicated in the case. He had not committed the alleged offence. There is no legal evidence against the petitioner to connect him with the offence. The two independent witnesses i.e. Munish Sharma (PW-2) and Khem Raj (PW-3) have not supported the case of prosecution and have been declared hostile. Statements of PW-2 & ::: Downloaded on - 28/09/2023 20:36:59 :::CIS 3 PW-3 were recorded on 20.07.2021. Learned counsel further submitted that the respondent has not been able to lead its entire .
evidence even though almost four years have gone by from the date of registration of the FIR. On that ground also, prayer was made for releasing of the petitioner on bail.
Learned Additional Advocate General while resisting the of bail petitioner submitted that the petitioner is accused of possessing 1.572 kgs of cannabis. Being a case of recovery of commercial rt quantity of the contraband, provisions of Section 37 of the NDPS Act are attracted. The petitioner has not been able to satisfy the conditions imposed therein, therefore, he is not entitled to bail. It was further submitted that the instant is not a case of delay in trial.
Prosecution has been leading its evidence. Statements of 15 out of total 22 witnesses have already been recorded. Trial is nearing completion, therefore, the petitioner does not deserve to be enlarged on bail. The prosecution in its status report has also emphasized that enlargement of petitioner on bail might lead him to influence the independent witnesses, hence, prayer has been made to oppose the bail petition.
5. Observations:-
5(i). Since quantity of the contraband recovered in the FIR is commercial, therefore, Section 37 of the NDPS Act comes into play & reads as under:-::: Downloaded on - 28/09/2023 20:36:59 :::CIS 4
"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
.
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 of section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and of
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any rt offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-
section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
In order to avail bail, the petitioner has to satisfy following twin conditions imposed in Section 37 of the NDPS Act:-
"(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and
(ii) Petitioner is not likely to commit any offence while on bail."
Hon'ble Apex Court in (2020) 12 SCC 122, titled State of Kerala and others Versus Rajesh and others, after considering various pronouncements held that the expression 'reasonable grounds' used in Section 37 of the NDPS Act means something more than prima-facie grounds. It contemplates substantial probable ::: Downloaded on - 28/09/2023 20:36:59 :::CIS 5 causes for believing that the accused is not guilty of alleged offence.
It would be appropriate to extract relevant paras from the judgment:-
.
"19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.PC, but is also subject to the limitation placed by Section 37 which commences with non- obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first of condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is rt not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
5(ii) Present is a case of recovery of 1.572 kgs of cannabis from the petitioner. The petitioner was arrested on 07.12.2019. The petitioner has by now completed about 3 years and 9 months in custody. The respondent has not indicated any previous criminal history of the petitioner in the status report.
::: Downloaded on - 28/09/2023 20:36:59 :::CIS 65(iii) AIR 2023 SC 1648 (Mohd Muslim @ Hussain Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein .
facing charge under Section 29 of the Act and suffering incarceration for over seven years was granted bail on account of delay in trial.
Hon'ble Court, inter-alia, reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial of discretion, it is on the basis that investigation and trials would be concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of rt India V. K.A. Najeeb) and (2022) 6 SLR 382 (Vijay Madan Lal Chaudhary Vs Union of India) were also observed wherein it was concluded that statutory restrictions like "section 43-D(5) of UAPA cannot fetter a constitutional Court's ability to grant bail on ground of violation of fundamental right" ..... "If the Parliament provides for stringent provision of no bail unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to one and half of the maximum period of imprisonment specified for the concerned offence by law. (2022) 10 SCC 51 (Satender Kumar Antil Vs. CBI) was also considered, where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 of NDPS Act. In Mohd. Muslim's ::: Downloaded on - 28/09/2023 20:36:59 :::CIS 7 case (supra), it was held as under with reference to expression "not guilty of such offence":-
.
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a 18 As per the counteraffidavit dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court's of discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Cr.PC) which classify offences based on their gravity, and instruct that certain rt serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions.
In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is ::: Downloaded on - 28/09/2023 20:36:59 :::CIS 8 not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only .
manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
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20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of rt this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref.
Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."
5(iv) While deciding Special Leave to Appeal (Crl.) No(s).
4169/2023 vide judgment dated 13.07.2023 (Rabi Prakash Vs. The State of Odisha), the Hon'ble Apex Court held that prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.
::: Downloaded on - 28/09/2023 20:36:59 :::CIS 95(v) According to the respondent, prosecution in all had to examine 22 witnesses, out of which 15 witnesses have already been .
examined as on date. Statements of 7 witnesses are yet to be recorded. Considering the fact that the FIR in question pertains to the year 2019 and also the fact that the final report was presented as far back as on 18.05.2020, the pace of the trial is apparently very slow.
of At this pace, the trial will take long time to conclude. Learned counsel for the petitioner has also highlighted the statements of independent rt witnesses i.e Munish Sharma (PW-2) and Khem Raj (PW-3) recorded on 20.07.2021, to project that they have not supported the case of prosecution and were declared hostile. It was the contention of learned counsel for the petitioner that even during cross-examination, the independent witnesses did not support the prosecution case.
Taking into consideration the facts and circumstances of the case in the backdrop of law laid down in Mohammad Muslim's and Rabi Prakash's cases, supra and the period spent by the petitioner in custody coupled with the fact that trial of the case will take long time to conclude, the petitioner, at this stage, has made out a case for his enlargement on regular bail. The apprehension expressed by the respondent in its status report about the possibility of petitioner's influencing independent witnesses is misplaced as the independent witnesses have already been examined in the year 2021. Petitioner is in custody ever since 07.12.2019 & has completed almost three ::: Downloaded on - 28/09/2023 20:36:59 :::CIS 10 years & nine months as an under trial prisoner. Status report does not indicate any previous criminal history of the petitioner, therefore, it .
can be reasonably believed that the petitioner will not indulge himself in similar offence in future.
In view of all the aforesaid reasons, the present petition is allowed. Petitioner is ordered to be released on bail in the of aforesaid FIR on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) with one local surety in the rt like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-
(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law.
(ii). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
(iii). Petitioner will not leave India without prior permission of the Court.
(iv). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.::: Downloaded on - 28/09/2023 20:36:59 :::CIS 11
(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(vi). Petitioner shall inform the Station House Officer of .
the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter.
Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account of Number, if any.
(vii) It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, rt then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be considered as a negative factor for consideration of his future bail application, if any.
In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide the matter uninfluenced by any of observations made hereinabove.
::: Downloaded on - 28/09/2023 20:36:59 :::CIS 12With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, .
if any.
Jyotsna Rewal Dua Judge 28th September 2023(Rohit) of rt ::: Downloaded on - 28/09/2023 20:36:59 :::CIS