Himachal Pradesh High Court
Rajvir @ Raju vs Rajesh Etc on 11 November, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11th DAY OF NOVEMBER, 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CRIMINAL MISC. PETITION (MAIN) No.2099 of 2022
Between:-
RAJVIR @ RAJU,
AGED 31 YEARS,
S/O LATE SHRI BISEMBER,
R/O VILLAGE PRITHLA,
TEHSIL & DISTRICT PALWAL,
HARYANA, THROUGH HIS
BROTHER-IN-LAW SH. PREM SINGH,
AGED 36 YEARS,
S/O AKHEY RAM, LEKH,
R/O VILLAGE CHAUTHAYIA MOHALLA,
NEAR BALA SCHOOL, KONDAL (234),
DISTRICT PALWAL, HARYANA
......PETITIONER
(BY MR. KULWANT SINGH GILL, ADVOCATE)
AND
NARCOTICS CONTROL BUREAU CHANDIGARH
......RESPONDENT
(BY MR. ASHWANI PATHAK, SENIOR ADVOCATE
WITH MR. DEV RAJ, ADVOCATE)
This petition coming on for orders this day, the Court
passed the following:
ORDER
Petitioner is co-accused in Crime No.38/2019, dated 02.08.2019, registered at Police Station Narcotics Control Bureau, Chandigarh, under Sections 8, 20, 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 2 1985 (in short 'NDPS Act'). He was arrested on 06.08.2019.
By way of the present petition filed under Section 439 of the Code of Criminal Procedure, he seeks his release on regular .
bail.
2. The case against the petitioner in nutshell is that:-
2(i). On 05.08.2019, a specific information was received by the respondents that three persons namely Bhagat Singh, Ravi and Rajvir (petitioner) would buy a considerable amount of cannabis from one Surender Kumar of Himachal Pradesh somewhere between Swarghat and Nalagarh. Thereafter, these three persons will go to Faridabad via Nalagarh through a car described in the information.
2(ii). In view of above information, a team was deputed by the respondent to conduct surveillance, search and seizure operation. This team reached Nalagarh Bus Stand at about 19:30 hours on 05.08.2019. None of the persons present there could be associated by it as independent witness in the search and seizure proceedings.
2(iii). At around 20:30 hours, the team noticed the car described in the information coming on Swarghat-Nalagarh-
Baddi road. The team signalled the vehicle to stop. The car ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 3 was stopped. All three occupants of the car stepped outside.
One of them locked the car and taking advantage of the crowd and darkness fled from the spot alongwith car keys.
.
This person was later identified as Ravi. The other two persons disclosed their identities as Bhagat Singh and Rajvir (petitioner), both residents of Village Prithla, Tehsil and District Palwal, Haryana.
2(iv). The prosecution has also submitted that the vehicle was locked from inside by the third person (Ravi), who had managed to flee from the spot alongwith the keys of the vehicle. Therefore, the NCB team called a mechanic-
Sanjeev Kumar, who opened the vehicle. This mechanic-
Sanjeev Kumar also stood as independent witness during search and seizure proceedings.
2(v). According to the prosecution, search of the vehicle was carried out in accordance with law. From the backseat of the Creta car, a polythene was taken out with the help of accused persons. This polythene had seven packets containing 1.945 kilogram of cannabis. The recovery of contraband led to registration of the case. The petitioner and Bhagat Singh were taken into custody on 05.08.2019 and were arrested on 06.08.2019.::: Downloaded on - 14/11/2022 20:31:46 :::CIS 4
3. Learned counsel for the petitioner submitted that the petitioner was not present in the vehicle at the time of alleged recovery of contraband from it. No recovery of the .
contraband was effected from him. The petitioner did not have any exclusive or conscious possession of the contraband. He had no role, whatsoever, in the alleged purchase or possession of the contraband. There is nothing incriminating against the petitioner, which can relate to his involvement in the aforesaid crime. Petitioner, presently aged about 32 years, was the only bread earner of his family consisting of his wife and two minor children. His parents died years ago. Because of petitioner's languishing in jail, his family is suffering immensely. It was also submitted that the petitioner has by now, spent three years and three months in detention. One out of four accused persons, i.e. Ravi, had fled from the spot of alleged occurrence of crime on 05.08.2019 itself. He has still not been apprehended by the prosecution. The other co-accused Bhagat Singh was granted interim bail on 30.01.2021. He was to surrender on 12.02.2021, but he absconded after jumping the interim bail. He is still at large. Proclamation proceedings initiated against Bhagat ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 5 Singh are yet to be finalized. Prayer was made to release the petitioner on bail.
Learned Senior Counsel appearing for the .
Narcotics Control Bureau, Chandigarh while opposing the bail petition submitted that the petitioner was an occupant of the vehicle, from which the cannabis weighing 1.945 kilogram was recovered. This recovery was pursuant to a specific information received by the respondent regarding the petitioner, Bhagat Singh and Ravi carrying the cannabis in the said vehicle, therefore, to say that the petitioner was not involved in the crime is incorrect. Learned Senior Counsel also submitted that the cannabis was recovered from the conscious and joint possession of all the accused persons, who were travelling in the vehicle in question.
Learned Senior Counsel further submitted that the petitioner had signed the 'panchnama' proceedings.
Statements of Bhagat Singh and petitioner recorded under Section 67 of the NDPS Act were also pressed into service to show the involvement of the petitioner in commission of alleged crime. It was argued that commercial quantity of the contraband was recovered from the vehicle, therefore, rigors of Section 37 of the NDPS Act are attracted and that the petitioner has not been able to satisfy the conditions ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 6 imposed in the Section. Prayer was accordingly made to dismiss the petition.
4. The instant case pertains to recovery of .
commercial quantity of cannabis weighing 1.945 kilogram, hence, Section 37 of the NDPS Act gets attracted, which reads as under:
"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
(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 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 make out a case for release on bail, petitioner has to satisfy the following twin conditions imposed in the aforesaid section:-
(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.::: Downloaded on - 14/11/2022 20:31:46 :::CIS 7
With regard to Section 37 of the NDPS Act, Hon'ble Apex Court in AIR 2020 SC 721, State of Kerala Etc. Versus Rajesh Etc., held as under vide paras 19 and .
20:-
"19. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:-"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under:
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years.
Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 8
(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent- accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards which would accompany trafficking .
illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."
20. 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 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 not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates."
In reference to meaning of the words 'reasonable grounds', following was observed in para 21 of the judgment:-
"21. 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 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 indeed uncalled for."
(2021) 10 SCC 100, titled Union of India through Narcotics Control Bureau Versus Md. Nawaz Khan, was a case where search of the car had led to ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 9 recovery of commercial quantity of the contraband from its bonnet. One of the plea raised was that the contraband was found concealed in the vehicle in which the accused was .
travelling, therefore, it cannot be said that the accused was in conscious possession of the contraband as he was neither the driver nor the owner of the vehicle. After noticing the provisions of Section 37 of the NDPS Act, placing limitations on the grant of bail for offences punishable under Sections 19, 24, 27-A of the NDPS Act and also for offences involving a commercial quantity, the Hon'ble Apex Court took into consideration Union of India v.
Shiv Shanker Kesari, (2007) 7 SCC 798, regarding the "reasonable ground to believe" that the person is not guilty of the offence, to observe as under:-
"22. The standard prescribed for the grant of bail is "reasonable ground to believe" that the person is not guilty of the offence. Interpreting the standard of "reasonable grounds to believe", a two-judge Bench of this Court in Shiv Shanker Kesari, held that: (SCC pp.801-02, paras 7-8 & 10-11) "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 10 circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".
"7. ... Stroud's Judicial Dictionary, 4th Edn., p.2258 states that it would be unreasonable to expect an exact definition of the word .
"reasonable". Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy."
(See MCD v. Jagan Nath Ashok Kumar, SCC p. 504, para 7 and Gujarat Water Supply & Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd.]
10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd.)
11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty." (emphasis supplied)
23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed."
::: Downloaded on - 14/11/2022 20:31:46 :::CIS 11What amounts to conscious possession was deliberated as under:-
"26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab, .
where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan, this Court also observed that the term "possession" could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.
27. We have referred to the above precedents to reiterate the governing principles. At this stage of the proceedings, it needs only to be clarified that the trial is to take place this Court (sic) where evidence will be adduced.
28. As regards the finding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. Rattan Mallik, a two-judge Bench of this Court cancelled the bail of an accused and reversed the finding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the 'possession' of the accused. The Court observed that merely making a finding on the possession of the contraband did not fulfil the parameters of Section 37(1)(b) and there was non-
application of mind by the High Court."
With regard to the statement made under Section 67 of the NDPS Act, following was observed in para 30:-
"30. With regard to the statement under Section 67 of the NDPS Act, the High Court has placed abundant reliance ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 12 on the inclusion of Mohd. Arif Khan's name in place of the respondent's name in the endorsement of translation on the statement of the respondent. In Tofan Singh, a three-judge Bench of this Court held that a statement under Section 67 of the NDPS Act is inadmissible. The ASG submitted that independent of .
the statement, there are valid reasons to deny bail on the basis of the material which has emerged at this stage."
5. Having heard learned counsel on both sides, I am of the considered view that in the facts of the case, the petitioner has made out a case for his enlargement on bail.
This is for the following, prima facie, reasons:-
5(i). The case against the petitioner is that commercial quantity of the contraband was recovered from the vehicle, wherein he was also travelling. Petitioner's submission at this stage is that he was not inside the vehicle, but was standing outside at the Bus Stand.
According to the respondents, the vehicle was locked by the third co-accused-Ravi, who had fled from the scene taking the car keys with him. Further as per the respondents, petitioner and the second co-accused-Bhagat Singh were standing outside the locked car. The car was got opened from one Sanjeev Kumar, a car mechanic. The contraband was recovered from within the car, allegedly with the assistance of accused Bhagat Singh and the petitioner.::: Downloaded on - 14/11/2022 20:31:46 :::CIS 13
5(ii). Though according to the respondent, scene of occurrence was a crowded place and taking advantage of the crowd, Ravi-one of the co-accused persons, fled away .
from the spot, yet, but for Sanjeev Kumar-the mechanic, called by them for opening the locked car, no other person from public was associated as independent witness either during the search or in the constitution of the raiding team.
5(iii). Prosecution also relies upon statement of co-accused Bhagat Singh recorded under Section 67 of the NDPS Act to implicate the petitioner. Detailed reference to this statement is avoided at this stage lest it causes prejudice to the case of either party, yet for the purpose of adjudication of the bail petition, some reference to the statement is necessary. Bhagat Singh has stated that he was the one, who interacted with Surender Kumar-the supplier of the contraband. He knew Surender Kumar for past one year. It was Bhagat Singh who had called Surender Kumar and expressed his intention to purchase cannabis. According to Bhagat Singh, Surender Kumar had agreed to sell the contraband and asked him to come to his place for purchasing the same. Subsequently, he (Bhagat Singh), Ravi and the petitioner left for Himachal Pradesh on 04.08.2019 in a car arranged by Ravi. Bhagat Singh has ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 14 also stated that the trio stayed in a hotel room booked under Ravi's name. He further stated to have himself procured and purchased cannabis from Surender Kumar .
against cash payment of Rs.1 Lakh 25 Thousand. Apart from stating that the petitioner also accompanied him, no other overt act or role was attributed to the petitioner.
5(iv). Statements of the petitioner and Bhagat Singh relied upon by the respondent to show petitioner's implication in the crime are recorded under Section 67 of the NDPS Act. In (2021) 4 SCC 1, titled Toofan Singh Versus State of Tamil Nadu, it has been held that a confessional statement recorded under Section 67 of the Act will be inadmissible in trial. No call detail record is available to indicate that the petitioner was in contact either with the supplier Surender Kumar or even with any of the other co-accused persons, i.e. Bhagat Singh and Ravi.
5(v). The alleged supplier of the contraband-Surender Kumar has not been arrested by the respondent. Prima facie, it appears that no direct link between Surender Kumar and petitioner has been established.
5(vi). The owner of the vehicle involved in the crime, namely Satbir Singh, in his statement under Section 67 of ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 15 the Act, has only implicated Bhagat Singh and Ravi. He has not made any reference to the petitioner.
5(vii). Bhagat Singh was granted interim bail on .
30.01.2021. He was to surrender on 12.02.2021, but he absconded after jumping the interim bail. Proclamation proceedings are as yet pending against him. The other co-accused Ravi had fled away from the scene on 05.08.2019 itself. The crime is of the year 2019. The petitioner has already spent more than three years in custody. Trial is yet to begin. Its completion will take further long time. In such circumstances, the petitioner cannot be made to incarcerate indefinitely. Charge-sheet stands filed. Petitioner in his bail petition has mentioned pendency of two criminal cases against him registered under Sections 285 & 506 IPC and Arms Act in the year 2015. No purpose will be achieved by continued detention of the petitioner. In number of cases, Hon'ble Apex Court has emphasized upon protecting liberty of the accused where trials have been delayed and under-trial has already undergone fairly long detention period. It will be appropriate to refer following paragraphs from one such decision in (2021) 3 SCC 713, titled Union of India Versus K.A. Najeeb:-
::: Downloaded on - 14/11/2022 20:31:46 :::CIS 16"10. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him. The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the .
trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43-D (5) of UAPA.
11. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Association (supra), laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case:
"10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] , on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21." (emphasis supplied)
12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba alias Shankar Raghuman Rohida v. State of Maharashtra and Umarmia alias Mamumia v. State of Gujarat enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.
13. We may also refer to the orders enlarging similarly -
situated accused under the UAPA passed by this Court ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 17 in Angela Harish Sontakke v. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial .
could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra, an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.
15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se 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 harmonized. 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 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 ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 18 the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
Early conclusion of trial where rigors of Section .
37 of the NDPS Act get attracted, was also emphasized in AIR 2022 SC 3386, titled Satender Kumar Antil Versus Central Bureau of Investigation & another, as under:-
"64. Now we shall come to category (C). We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigor imposed.
The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigor, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
6. Every case is to be examined on the basis of its own facts. In light of facts of the present case, prima facie, it appears that there are reasonable grounds to believe that the petitioner might not have played major role in commission of offences alleged against him. The other two accused persons have absconded. The supplier of the contraband has not been arrested till date. There is no call detail record between the petitioner and the other two ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 19 accused persons as well as with the supplier. The owner of the vehicle has also not implicated the petitioner. One of the accused in his confessional statement recorded under .
Section 67 of the Act did not attribute any significant role of the petitioner in the commission of alleged crime. Petitioner has already completed more than three years as an under-
trial prisoner. The trial is yet to begin. The petitioner, at this stage, has made out a case for his enlargement on regular bail. The apprehensions expressed by the prosecution about petitioner's non-availability during trial and/or his influencing the prosecution witnesses and evidence can be taken care of by imposing stringent conditions upon him.
7. Accordingly, the present petition is allowed.
Petitioner is ordered to be released on bail in the aforesaid crime on his furnishing personal bond in the sum of Rs.2,00,000/- (Rupees Two Lakh only) with two local sureties each in the like amount to the satisfaction of the learned Special Judge, Nalagarh, subject to the following conditions:-
(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.::: Downloaded on - 14/11/2022 20:31:46 :::CIS 20
(ii). The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.
(iii). The petitioner will not leave India without prior permission of the Court.
.
(iv). The 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.
(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 Number, if any.
(vii). Petitioner shall not indulge in any criminal activities. It is made clear that in case the petitioner is arraigned as an accused in future in any FIR, then this 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.
It is clarified that in case the petitioner misuses the liberty or violates the conditions imposed upon him, the ::: Downloaded on - 14/11/2022 20:31:46 :::CIS 21 Investigating Agency shall be at liberty to move for cancellation of 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. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua Judge November 11, 2022 Mukesh ::: Downloaded on - 14/11/2022 20:31:46 :::CIS