Himachal Pradesh High Court
_____________________________________________________________________ vs State Of Himachal Pradesh on 4 August, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.1820 of 2023
.
Date of Decision: 4.8.2023
_____________________________________________________________________
Ramanand .........Petitioner
Versus
State of Himachal Pradesh .......Respondent
Coram
of
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner:
rt Mr. Vivek Sharma, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
B.C.Verma, Additional Advocate Generals with Mr.
Mr. Ravi Chauhan, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Ramanand, who is behind the bars since 3.4.2022, has approached this court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail, in case FIR No. 15 of 2022, dated 3.4.2022, registered at Police Station Kupvi, District Shimla, Himachal Pradesh, under Sections 22, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, "the NDPS Act"), respectively.
2. Pursuant to the notice issued in the instant proceedings, respondent-State has filed status report and HC Govind has come present alongwith the record. Record perused and returned.
::: Downloaded on - 04/08/2023 20:46:08 :::CIS 23. Close scrutiny of the record/status report reveals that on 3.4.2022, police stopped one car bearing registration No. HP-08A-3539 .
(Alto 800) being driven by co-accused Ram Lal for checking and allegedly, recovered 540 bottles of cough syrup containing Codeine Phosphate. Since at the time of recovery, present bail petitioner was one of the occupants of the car, he also came to be named in the FIR. Co-accused Ram Lal already of stands enlarged on bail vide order dated 26.6.2023 passed by this Court in bunch of cases i.e. Cr.MP(M) Nos.2866 of 2022 tilted as Raghav Saini rt versus State of H.P alongwith connected matters. Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, petitioner has approached this Court in the instant proceedings for grant of regular bail.
4. Mr. Vivek Sharma, learned counsel for the petitioner while making this Court peruse order dated 26.6.2023 passed by this Court in the case of co-accused Ram Lal vs. State of H.P., vehemently argued that since main accused already stands enlarged on bail, petitioner from whose conscious possession nothing can be recovered also deserves to be enlarged on bail. He further submitted that as per investigation no concrete evidence emerged against the petitioner suggestive of the fact that he was aware of the contraband being taken by co-accused Ram Lal in his vehicle and as ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 3 such, he needs to be enlarged on bail. Mr. Sharma, submitted that otherwise also contraband allegedly recovered from the conscious .
possession of co-accused does not fall in the definition of the "Manufactured Drugs" as provided under section 2 of Sub Clause (xi) of the NDPS Act, if it is so, recovery of drugs, if any, from the conscious possession of the bail petitioner and co-accused cannot be said to be under of the NDPS Act as defined under Section 2 (xiv) of the NDPS Act, which specifically defines "Narcotic Drug" as coca leaf, cannabis, opium, poppy rt straw and includes all manufactured goods. While referring to Section 2
(xi)(b) of the NDPS Act, Mr. Sharma argued that though Central Government has power to declare any other narcotic substance or preparation to be a "Manufactured Drug", but that would not include any narcotic substance or preparation, which it may having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a "Manufactured Drug". While inviting attention of this Court to the notification dated 14.11.1985 issued by the Central Government, learned counsel for the petitioner argued that as per Entry 35, there is an exception made that Methyl morphine (commonly known as ''Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 4 preparations, except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per .
dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in Therapeutic practice, shall not be deemed to be "Manufactured Drugs". Mr. Sharma specifically invited attention of this Court to order dated 26.6.2023 passed by this of Court in bunch of cases including case of co-accused Ram Lal vs. State of H.P., where aforesaid proposition of law put forth counsel representing the rt petitioner has been elaborately dealt with. In support of aforesaid submissions, Mr. Sharma also placed reliance upon the judgment passed by the Allahabad High Court in case titled Vibhor Rana v. Union of India 2021 SCC OnLine All 908, decided on 24.12.2021. Lastly, learned counsel for the petitioner submitted that bail petitioner is behind the bars for more than one year four months and till date prosecution has been only able to examine five prosecution witnesses, out of 21 and as such, there is every likelihood of delay in conclusion of trial and as such, petitioner otherwise deserves to be enlarged on bail on the ground of delay in conclusion of the trial.
5. While fairly acknowledging factum with regard to filing of the challan in the competent court of law, Mr. B.C.Verma, learned Additional ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 5 Advocate General, vehemently argued that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence .
alleged to have been committed by him, he does not deserve any leniency.
He submitted that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner indulge in the illegal trade of narcotics and by no stretch of imagination, it can be inferred that drug of recovered from the conscious possession of the bail petitioner was for therapeutic purposes. He further submitted that notification dated rt 14.11.1985, issued by the Central Government is not attracted in the given facts and circumstances of the case, but even otherwise, Section 80 of the NDPS Act, nowhere prohibits the registration of a case under the NDPS Act if there is material available on record to suggest that contraband recovered from the conscious possession of the accused also contains "Narcotic Drugs", may be in less quantity. In support of his aforesaid submissions, Mr. Verma, placed reliance upon the judgment passed by Hon'ble Apex Court in Hira Singh v. Union of India, SCC Online SC 382, wherein it has been held that entire bulk is to be taken into consideration. He further submitted that judgment passed by the High Court of Allahabad in Vibhor Rana's case (supra) has already been laid challenge in the Hon'ble ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 6 Supreme Court of India and as such, same cannot be pressed in service for enlarging the petitioner on bail.
.
6. Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of alleged incident 540 bottles of cough syrup, containing Codeine Phosphate was recovered from the car being driven by co-accused Ram Lal, who already of stands enlarged on bail. Vide order dated 26.6.2023, this Court having taken note of notification dated 14.11.1985, issued by Government of India rt containing the list of narcotic drugs has already held that if any drug contains not more than 100 milligrams of Methyl Morphine, which is commonly known as Codeine, per dosage unit, and in that drug Codeine is compounded with one or more other ingredients and if in the drug the concentration of Codeine is not more than 2.5% in undivided preparations and the drug has been established in Therapeutic practice, will not be a "Manufactured Drug" and, therefore, it will not be a prohibited drug as detailed under Section 10 of the Act.
7. At this stage, it would be apt to take note of following paras of aforesaid judgment hereinbelow:-
"11. Having heard learned counsel for the parties and perused material available on record, this Court finds that police, in all the cases as detailed herein above, recovered total 625 bottles ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 7 (i.e.20+540+50+15) of cough syrup, containing Codeine Phosphate, which is alleged to be a prohibited drug (Schedule-H drug), under the NDPS Act. Needless to say, NDPS Act, came to be enacted with an .
object to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of the property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of International Convention on Narcotic of Drugs and Psychotropic Substances and for matters connected therewith. Object of the Act, if read in entirety, clearly provides that NDPS Act specifically deals with narcotic drugs and psychotropic rt substances. At this juncture, it would be apt to take note of Section 2 of the NDPS Act:
"2. Definitions.......
..............
...............
...............--
(xi) "manufactured drug" means--
(a) all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate;
(b) any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare to be a manufactured drug;
but does not include any narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision, if any, under any International Convention, by notification in the Official Gazette, declare not to be a manufactured drug;
(xii) ".........
(xiii) ".........
(xiv) "narcotic drug" means coca leaf, cannabis (hemp), opium, poppy straw and includes all manufactured goods;"
::: Downloaded on - 04/08/2023 20:46:08 :::CIS 812. Careful perusal of aforesaid provision of law reveals that manufactured drug would include all coca derivatives, medicinal cannabis, opium derivatives and poppy straw concentrate. Section 2 .
(xi) (b) provides that Central Government may having regard to the available information or to a decision, if any, under any International Convention, by notification, in the Official Gazette, declare any other narcotic substance or preparation, to be a manufactured drug, meaning thereby, drug, which is not notified by the notification would not mean manufactured drug in terms of Section 2 2(xi). Similarly, of drugs, if any, not declared as manufactured drug by way of issuance of notification in terms of Section 2 (xi) (b) of the Act would also not fall in the definition of the Act. It would be apt to take note of Section rt
8 of the Act, which reads as under:
" PROHIBITION, CONTROL AND REGULATION
8. Prohibition of certain operations.--No person shall--
(a) cultivate any coca plant or gather any portion of coca plant; or
(b) cultivate the opium poppy or any cannabis plant; or
(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 9 Gazette, specify in this behalf: 1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"
13. Careful perusal of aforesaid provision of law reveals that no .
person shall cultivate any coca plant or gather any portion of coca plant; or cultivate the opium poppy or any cannabis plant; or produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, any narcotic drug or of psychotropic substances, except for medical or scientific purposes.
Bare reading of aforesaid provision of law clearly reveals that opium derivative also includes Codeine Phosphate, which means that drug rt containing Codeine Phosphate also falls in the definition of manufactured drug. As per Section 2 (xi) (a), opium derivatives are included in the manufactured drug and as per Section 2 (xvi), all the manufactured drugs are included in the definition of narcotic drugs, unless the same falls within the exception of Section 2 (xi), which provides that manufactured drug would not include any narcotic substance or preparation, which the central government may having regard to the available information as to its nature or to a decision, if any, under international Convention, by notification in the Official Gazette, declare not to be a manufactured drug.
14. It is not in dispute that on 14.11.1985, Government of India issued notification S.O. 826 (E) dated 14.11.1985 and S.O. ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 10 40(E) dated 29.1.1993, containing the list of narcotic drugs. Entry 35 of S.O. 826 (E) of Notification dated 14.11.1985, reads as follows:
.
"Methyl morphine (commonly known as ''Codeine') and Ethyl morphine and their salts (including Dionine), all dilutions and preparations except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5% in undivided preparations and which have been established in Therapeutic practice."
of
15. Aforesaid notification clearly suggests that if any drug contains not more than 100 milligrams of Methyl Morphine, which is rt commonly known as Codeine, per dosage unit, and in that drug Codeine is compounded with one or more other ingredients and if in the drug the concentration of Codeine is not more than 2.5% in undivided preparations and the drug has been established in Therapeutic practice, will not be a "Manufactured Drug" and, therefore, it will not be a prohibited drug as detailed under Section 10 of the Act.
16. In all the cases as detailed herein above, cough syrup containing Codeine Phosphate came to be recovered, but report given by the FSL in all the cases clearly reveals that concentration of Codeine is not more than 2.5% in undivided preparation, meaning thereby, that would not fall in the definition of the "manufactured drug" as defined under Section 2 (xi) (b). Prohibition contained under Section 8 of the NDPS Act is applicable to "Narcotic Drug", but since quantity in all the cases of Codeine Phosphate is less than 2.5% in undivided preparation, same would not fall in the definition of "Manufactured Drug" and if it is so, transportation, if any, of the ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 11 same, would not be prohibited in terms of Section 8 (c) of the NDPS Act.
17. During proceedings of the case, learned counsel for the parties .
also made available communications dated 26.10.2005 and March, 2009 issued by the Drug Controller General of India, made to all the State Drug Controllers, which have been otherwise taken note of by the Allahabad High Court in Vibhor Rana's case supra, which read as under:
of "26. To clarify this position, on 26.10.2005 the Drug Controller General of India had written letter to all the State Drugs Controllers stating as follows:-
"As you are aware there are number of Cough preparations like Corex of M/s Pfizer Ltd. Mumbai, Phensedyl of M/s. Nicholas Piramal India Limited, rt Mumbai, Codokuff of M/S. German Remedies, Codeine Linctus of M/s Zydus Alidac etc. moving in inter state commerce. These preparations contain among other drugs Codeine Phosphate 10 mg as one of the ingredients. By virtue of the fact that these preparations contain Codeine and it salts they do not fall under the provisions of NDPS Act and Rules of 1985 but they fall under Schedule H of the Drugs and Cosmetics Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rules 1985 however these formulations are prescriptions drugs and are to be dispensed on the prescriptions drug and are to be dispensed on the prescription of a registered Medical Practitioner only. Further you may be already aware that under notification number S.O. 826(E) dated 14th Nov. 1985 under the Narcotic Drugs and Psychotropic Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcotic drug to the extent permitted. In respect of Codeine under entry no.35 it is stated that Codeine and Ethyl Morphine and their salts including Dionine all dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice."
27. In March 2009 the Drugs Controller General (India) had issued a letter to the Associated Chambers of Commerce and Industry of India in response to a request for clarification of drug substance Cough Linctus containing codeine Phosphate stating that:-
"In this connection this Directorate had already issued a circular letter vide our letter number X-11029/27/05-D dated 26/10/2005 to all State Drugs ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 12 Controllers with a copy to various associations and a copy Narcotic Control Bureau New Delhi (copy enclosed). The above circular inter alia stated that these preparations (Cough Linctus containing Codeine Phosphate) contains among other drugs Codeine Phosphate 10 mg as one of the ingredients. By .
virtue of the fact that these preparations contain Codeine and its salts they do not fall under the provisions of NDPS Act and the Rules of 1985 but they fall under Schedule H of the Drugs and Cosmetic Rules and are governed by the said rules. Though stocking and sale of these drugs do not attract the provisions of NDPS Act and Rules 1985, however these formulations are prescriptions drugs and are to be dispensed on the prescriptions of a registered Medical Practioner only.
Further you may be aware that under notification number S.O.826 (E) dated 14the November, 1985 under the Narcotic Drugs and Psychotropic of Substances Act and Rules 1985 certain preparations are exempted as manufactured drugs provided the preparations contain the Narcotic drug to the extent permitted. In respect of Codeine under entry no. 35 it is stated that Codeine and Ethyl Morphine and their salts including Dionine all dilutions and preparations are considered to be manufactured drugs except those rt which are compounded with one or more other ingredients and containing not more than 100 miligrams of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practice."
18. In both the aforesaid communications, it has been clarified by the Drug Controller General of India that Codeine and Ethyl Morphine and their salts including Dionine all dilutions and preparations are considered to be manufactured drugs except those which are compounded with one or more other ingredients and containing not more than 100 milligrams of the drug per dosage unit and with a concentration of not more than 2.5 per cent in undivided preparations and which have been established in therapeutic practices.
19. Status report filed in all the cases clearly indicates that FSL Junga, while rendering on record chemical analysis report categorically opined quantity of Codeine Phosphate to be less than 2.5%. If it is so, contraband alleged to be recovered from the conscious possession of the bail petitioner(s) cannot be said to be ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 13 "manufactured drug" in terms of provisions contained under Section 2 (xi) (b).
20. Mr. Rajan Kahol, learned Additional Advocate General .
while fairly admitting factum with regard to report given by FSL vehemently argued that to avail benefit of Entry 35 of notification dated 14.11.1985, twin conditions as mentioned under entry No. 35 are required to be satisfied. He submitted that since in the cases at hand, none of the petitioner was able to establish on record that cough syrup containing Codeine Phosphate was being used for of therapeutic purposes, no benefit, if any, can be allowed to be taken by the petitioners of the Entry 35 contained in the Notification dated 14.11.1985. In this regard, he placed heavy reliance upon judgment rt passed by the High Court of Calcutta in Dechay Tshering Bhutia's case (supra), wherein it has been held that twin conditions as mentioned in Entry 35 of the notification are independent of each other and they stand on their separate respective limbs. An accused, to avail of the exception carved out under Entry 35 of the said Notification must satisfy the twin tests together as discussed above and not in isolation, to overcome the rigours of Section 37 and restrictive provisions in the NDPS Act.
21. Though this Court finds no quarrel with the aforesaid proposition of law laid down by the High Court of Calcutta, but question whether drug allegedly came to be recovered from the conscious possession of the accused was being used for the therapeutic practices is a question to be decided by the court below in the totality of evidence led on record by the investigating agency, but even otherwise, this Court is of the view that once bail petitioner(s) herein has been successful in establishing on record that contraband allegedly came to be recovered from their possession does not fall in the definition of "Manufactured Drug" as defined under Section 2 (xi) ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 14
(b) and as such, provisions contained under NDPS Act are not applicable and if it is so, rigours of Section 37 of the Act, do not come into operation while considering prayer made by the petitioners for .
grant of bail. Otherwise also, High Court of Allahabad, while rendering judgment in Vibhor Rana (supra) has specifically dealt with expression "established in therapeutic practice", which has not been interpreted in any previous decision and as such, is required to be given simple and natural meaning. The phrase "established in therapeutic practice" apparently means that the compound in of question has been established to be a drug in accordance with the therapeutic practices followed for establishment of new drugs. It would be apt to take note of the following paras of the aforesaid rt judgment:
"38. In both the aforesaid decisions in State of Punjab v. Rakesh Kumar and Hemant Kumar Saini versus Union of India (Supra), the question whether or not the offending substances fell within the definitions of "manufactures drugs" and "narcotic substance" provided in Sections 2 (xi) and 2 (xiv) of the NDPS Act, was not decided. However, in the present case, the composition of the drug has been pleaded specifically and the same has not been disputed by the respondents. It is thus admitted that Phensedyl New Cough Linctus contains Codeine compounded with one other ingredient, namely Chlorpheniramine Maleate and contains merely 10 milligrams per dosage unit of 5 ml, which is not more than 100 milligrams of the drug per dosage unit in undivided preparations and the concentration of Codeine in Phensedyl New Cough Linctus is merely 0.2%, which obviously is not more than 2.5%. and the precise question involved in the case is on the basis of the aforesaid undisputed facts, whether Phensedyl New Cough Linctus falls within the exception mentioned in entry 35 of the Notification dated 14-11-1985 or not and consequently, whether the provisions of the NDPS Act would apply to it or not. Therefore, both the aforesaid judgments are not relevant for deciding the question involved in the present Writ Petition.
39. In Hemant Kumar Saini (Supra), this Court has found force in the argument that the case of State of Uttaranchal Vs. Rajesh Kumar Gupta5, which has been relied upon by this Court in the case of Ashok Kumar Vs. Union of India (supra), has been over ruled by the Hon'ble Supreme Court in the case of Union of India Vs. Sanjeev V. Despande (supra) and the Court while deciding the case of Ashok Kumar Vs. Union of India (Supra), decided on 15.10.2014, has not discussed the law laid down by the Hon'ble Supreme ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 15 Court in the case of Union of India Vs. Sanjeev V. Despande (supra), which was decided earlier, i.e. on 12.08.2014. Therefore, the case of Ashok Kumar Vs. Union of India (supra) lost its binding effect in light of the law laid down by Hon'ble Apex Court in Union of India Vs. Sanjeev V. Despande (supra).
.
With due respect to the aforesaid Bench of a coordinate Bench of this Court, we may state that even if we do not take into consideration the decision in Ashok Kumar versus Union of India, a bare reading of the provisions contained in Sections 2 (xi), 2 (iv) of the Act and Entry 35 of the Notification dated 14-11-1985 issued by the Central Government coupled with the undisputed composition of Phensedyl New Cough Linctus is sufficient to hold that the drug is not a Narcotic Drug and the binding effect of the decision of the decision in Ashok Kumar will not make any difference on the same.
40.....
of
41. The expression "established in therapeutic practice" has not been interpreted in any previous decision. It is a basic rule of interpretation that the words used in the statute should be given there simple and natural meaning and neither any word should be added nor should any word be ignored while rt interpreting any provision. When the Government has used the expression "established in therapeutic practice" these words cannot be altered so as to read it as "used for therapeutic purposes". The phrase "established in therapeutic practice" apparently means that the compound in question has been established to be a drug in accordance with the therapeutic practices followed for establishment of new drugs. Therefore, the submission of Sri. Ashish Pandey that the drug in question does not fulfil the condition no. (2) of having been "established in therapeutic practice", is without any force.
42. Moreover, use or misuse of a drug by the end user or consumer of the same would not have any affect on the law governing the drug. Phensedyl is a drug covered by the exception contained in Article 35 of the Notification dated 14-11-1985 issued by the Central Government and it is not a narcotic drug and hence not covered by the provisions of the NDPS Act and merely because some persons may be misusing it for other than therapeutic purposes, it would not come within the purview of the NDPS Act. NDPS Act has been enacted with a specific object and the Authorities under the Act can exercise jurisdiction strictly in accordance with the provisions of the Act. The Authorities under the Act do not have sweeping powers to take action upon suspicion of any illegality or irregularity of any sort committed at any place in respect of any substance. It is settled law that penal statutes have to be interpreted in a strict manner."
22. Though cases at hand are to be decided by the court below in the totality of evidence led on record by the investigating agency, but keeping in view the aforesaid glaring aspect of the matter, this Court ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 16 sees no reason to let the bail petitioner(s) incarcerate in jail for indefinite period during trial, especially when they have already suffered for considerable time. Hon'ble Apex Court as well as this .
Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record. Apprehension expressed by the learned Additional Advocate General that in the event of petitioners' of being enlarged on bail, they may flee from justice, can be best met by putting the bail petitioners to stringent conditions as has been fairly stated by the learned counsel for the petitioner(s).
rt
8. Since co-accused Ram Lal already stands enlarged on bail in terms of aforesaid judgment passed by this Court, prayer made on behalf of the bail petitioner also deserves to be considered and allowed in terms of the reason given in the aforesaid judgment.
9. There is another aspect of the matter i.e. delay in conclusion of the proceedings. Admittedly, in the case at hand, bail petitioner is behind bars for more than one year four months and till date, prosecution has been only able to examine 5 witnesses out of 21. Having taken note of the number of prosecution witnesses to be examined in case referred herein above, there is every possibility of delay in conclusion of the trial. Needless to say, Hon'ble Apex Court as well as this Court have held that speedy trial is a fundamental right of the accused and violation thereof amounts to ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 17 violation of Article 21 of the Constitution of India, which is not permissible under law.
.
10. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v.
State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
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"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 rt SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
11. Learned counsel for the petitioner while inviting attention of this court to judgment dated 29.3.2023 passed in Petition for Special Leave to Appeal (Crl.) No. 1904 of 2023, Sunil Kumar v. State of Himachal Pradesh, submits that petition having been filed by bail petitioner deserves to be allowed on the ground of inordinate delay in conclusion of the trial. Perusal of the aforesaid judgment reveals that petitioner was behind bars for more than 1½ years and trial was yet to be concluded and Hon'ble Apex Court having taken note of inordinate delay in conclusion of the trial, proceeded to enlarge the petitioner in that case on ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 18 bail. Learned counsel also invited attention of this Court to the judgments dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023, .
titled Puran Chand v. State of HP and Prem chand v. State of HP., to state that in similar facts and circumstances, coordinate Bench of this Court as well as this Court enlarged the accused on bail on the ground of inordinate delay. Having perused aforesaid judgments passed by the of coordinate Bench of this Court, this Court finds that in both the cases, commercial quantity of contraband was recovered from the accused, but yet rt court having taken note of the fact that they were behind the bars for more than three years, proceeded to enlarge them on bail.
12. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.
::: Downloaded on - 04/08/2023 20:46:08 :::CIS 1913. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, have referred order dated .
12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was of enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last rt witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.
14. Recently, Hon'ble Apex Court in SLP(Crl) No. 1904 of 2023 titled Sunil Kumar v. The State of Himachal Pradesh, decided on 29.3.2023, has ordered enlargement of petitioner therein, who was behind bars for one and half years, on the ground of delay in trial and conduct of the petitioner.
15. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioners on bail, especially in the cases where rigors of Section 37 are attracted.
::: Downloaded on - 04/08/2023 20:46:08 :::CIS 2016. Recently, the Hon'ble Apex Court vide judgment dated 26.4.2023, passed in Petition for Special Leave to Appeal (Crl.) No. 2500 .
of 2023, titled Allepu Ramesh v. The State of Chhattisgarh, having taken note of the inordinate delay in conclusion of the trial coupled with the fact that accused in that case was behind bars for more than 1 year, enlarged him on bail on the round of inordinate delay in conclusion of the of trial. Relevant paras of the aforesaid judgment read as under:
"3.Shri Sumeer Sodhi, learned counsel for the respondent/State rt vehemently opposes the application. He submits that in addition to the case being of NDPS Act, the petitioner originally belongs to Telangana and if he is released on bail, it will be difficult to trace him.
4. Taking into consideration the fact that the petitioner has already been incarcerated for a period of more than one year and that the independent witnesses have turned hostile, we are inclined to grant bail.
5. The petitioner is directed to be released on bail in connection with Special NDPS Case No.22 of 2022, to the satisfaction of the Trial Court."
17. In the instant case, bail petitioner is behind bars for a considerable time and till date only five prosecution witnesses have been examined out of 21 and there are very bleak chances of conclusion of the ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 21 same in near future, as such, there appears to be no justification to keep the bail petitioners behind the bars for an indefinite period.
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18. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by of the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
19. rt Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
20. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise ::: Downloaded on - 04/08/2023 20:46:08 :::CIS 22 also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, .
severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
21. The Apex Court in Prasanta Kumar Sarkar versus Ashis of Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie rt case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
22. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000/-, with two local sureties in the like amount each to the satisfaction of Chief Judicial Magistrate/trial Court Shimla, with following conditions:
a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;::: Downloaded on - 04/08/2023 20:46:08 :::CIS 23
b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. He shall not make any inducement, threat or promises to any person .
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court.
e. He shall hand over his passport to the investigating Agency.
of
23. It is clarified that if the petitioner misuses his liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
rt
24. Any observations made hereinabove shall not be construed to be a reflection on the merits of the main case and shall remain confined to the disposal of this application alone. The bail petition stands disposed of accordingly.
25. The bail petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
August 4, 2023 (Sandeep Sharma),
(shankar) Judge
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