Tivalu @ Shiv Chand vs State Of H.P on 23 February, 2023

[Cites 8, Cited by 14]

Himachal Pradesh High Court

Tivalu @ Shiv Chand vs State Of H.P on 23 February, 2023

Bench: Satyen Vaidya

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No. 323 of 2023.

Reserved on : 20th February, 2023.

Decided on: 23rd February, 2023.

    Tivalu @ Shiv Chand                                                     ...Petitioner.





                                         Versus

    State of H.P.                                                        ....Respondent.

    Coram:

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?1 Yes.

For the Petitioner: Mr. Yashveer Singh Rathore, Advocate.

For the Respondent: Mr. Rajan Kahol and Mr. Rakesh Dhaulta, Addl. AGs.

Satyen Vaidya, Judge.

Petitioner is an accused in case FIR No. 113 of 2019, dated 05.10.2019, registered under Section 20 of Narcotic Drugs and Psychotropic Substances, Act (for short 1 Whether reporters of the local papers may be allowed to see the judgment?

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'NDPS' Act) and 201 of the IPC, at Police Station Patlikuhal, District Kullu, H.P. Petitioner is in custody since 05.10.2019.

2. The allegations against the petitioner are that on 05.10.2019 at about 7.00 A.M., police officials nabbed the petitioner and recovered 5 Kilograms of charas from the bag carried by the petitioner and coaccused Biru. Case was registered and both the coaccused were arrested. Petitioner is in custody since 5.10.2019.

3. Petitioner has approached this Court for grant of bail on the ground that his right of speedy trial has been violated.

4. Per contra, the bail application has been opposed by learned Additional Advocate General on the ground that the petitioner is charged with serious offence of having been found in conscious possession of commercial quantity of charas. Section 37 of the NDPS Act will be applicable and it ::: Downloaded on - 23/02/2023 20:32:09 :::CIS ...3...

is not a case where prima facie evidence is not available against the petitioner.

5. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

6. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case till date. The question that arises for consideration is, can the provisions of Section 37 of the Act, be construed to have same efficacy, throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?

7. It is submitted by learned counsel for the petitioner that till date out of total 11 witnesses, only six witnesses have been examined, despite the fact that petitioner is in custody since 05.10.2019. In the considered view of this Court, the Constitutional guarantee of ::: Downloaded on - 23/02/2023 20:32:09 :::CIS ...4...

expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.

8. Recently, in a number of cases, undertrials for offences involving commercial quantity of contraband under ND&PS Act have been allowed the liberty of bail by Hon'ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.

9. In Mahmood Kurdeya Vs. Narcotic Control Bureau (2022) 3 RCR (Criminal) 906, Hon'ble Supreme Court has held as under: "6.What persuades us to pass an order in favour of the appellant is the fact that despite the rigors of Section 37 of the said Act, in the present case though charge sheet was filed on 23.09.2018 even the charges have not been framed nor trial has commenced."

10. In Nitish Adhikary @ Bapan Vs.The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022, Hon'ble Supreme Court has held as under: ::: Downloaded on - 23/02/2023 20:32:09 :::CIS ...5...

"During the course of the hearing, we are informed that the pe .

titioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are in clined to grant bail to the petitioner."

11. In rGopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022,Hon'ble Supreme Court has held as under: " The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No. 02/2020 in respect of offences punishable under Sections 8,20,27AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 The application seeking relief of bail having been rejected, the instant appeal has been filed.

We have heard Mr. Ashok Kumar Panda, learned Senior Advo cate in support of the appeal and Mr. Sanjay Jain, learned Additional Solicitor General for the respondent.

Considering the fact and circumstances on record and the length of custody undergone by the appellant, in our view the case for bail is made out."

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12. In Chitta Biswas @ Subhas Vs. The State of West Bengal, (Criminal Appeal No.(s) 245 of 2020, decided on 07.02.2020, it has been held as under: "The appellant was arrested on 21.07.2018 and continues to be custody. It appears that out of 10 witnesses cited to be ex amined in support of the case of prosecution four witnesses have already been examined in the trial.

Without expressing any opinion on the merits or demerits of the rival submissions and considering the facts and circum stances on record, in our view, case for bail is made out."

13. In Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir( Special Leave to Appeal (Cr.L.) No. 3961 of 2022, decided on 01.08.2022, it has been held as under: "Having regard to the fact that the petitioner is reported to be in jail since 132020 and has suffered incarceration for over 2 years and 5 months and there being no likelihood of comple tion of trial in the near future, which fact cannot be contro verted by the learned counsel appearing for the UT, we are in clined to enlarge the petitioner on bail.".

14. In addition, different Coordinate Benches of this Court have also followed precedent to grant bail to the ::: Downloaded on - 23/02/2023 20:32:09 :::CIS ...7...

accused in ND&PS Act, on the ground of prolonged pretrial incarceration. Reference can be made to order dated 28.07.2022, passed in Cr.MP(M) No. 1255 of 2022, order dated 01.12.2022, passed in Cr.MP(M) No. 2271 of 2022 and order dated 04.11.2022, passed in Cr.MP(M) No. 2273 of 2022. Even this Court in number cases including Cr.MP(M) No. 2640 of 2022 has allowed the bail application of accused in case under the NDPS Act where applicability of Section 37 of NDPS Act on the ground of delay in conclusion of trial and violation of right of speedy trial.

15. Reverting to the facts of the case, the petitioner is in custody for the last more than three years five months since 05.10.2019 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that the delay in trial is attributable to the petitioner. The prosecution has cited total 11 witnesses, out of which only six have been examined till date.

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16. Keeping in view the facts of the case and also the above noted precedents, the bail petition is allowed and petitioner is ordered to be released on bail in case FIR No. 113 of 2019, dated 05.10.2019, registered under Section 20 of NDPS Act and Section 201, at Police Station Patlikuhal, District Kullu, H.P., on his furnishing personal bond in the sum of Rs. 1,00,000/ with one surety in the like amount to the satisfaction of learned trial court. This order shall, however, be subject to the following conditions:

i) Petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.

ii) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand.

iii) Petitioner shall be liable for immediate arrest in the instant case in the event of petitioner violating the conditions of this bail.

(iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial.

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17. Any expression of opinion hereinabove shall have no bearing on the merits of the case and shall be deemed only for the purpose of disposal of this petition.

(Satyen Vaidya) Judge 23rd February, 2023.

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