Himachal Pradesh High Court
Date Of Decision: 17.07.2024 vs State Of Himachal Pradesh on 17 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:5464
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.1485 of 2024
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Date of Decision: 17.07.2024
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Bhupender Thakur ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
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For the Petitioner: Mr. Janmajai Chauhan, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar
r and Mr. B.C.Verma, Additional
Advocate Generals.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely, Bhupender Thakur, who is behind the bars since 19.11.2021, has approached this Court in the instant proceedings filed under Section 483 BNSS, 2023, for grant of regular bail in case FIR No.87 of 2021, dated 19.11.2021, under Sections 20 & 29 of the NDPS Act, registered at police Station, Sangrah, District Sirmaur, Himachal Pradesh.
2. Pursuant to order dated 10.07.2024, respondent-State has filed status report and SI/SHO Brij Lal has come present along with the record. Record perused and returned.
3. Close scrutiny of the status report/record reveals that on 18.11.2021, at 7.30 PM, police party under the leadership of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 18/07/2024 20:31:23 :::CIS 2Dy.SP, Shakti Singh, stopped a car bearing registration No.HP-79- 0887 being driven by the petitioner for checking. Since occupants .
i.e. driver and petitioner herein got perplexed and started making excuses, Police deemed it necessary to cause their personal search as well as of the vehicle. Allegedly, police after having associated independent witnesses, recovered 3.551 Kgs. of charas from the car. Since, no plausible explanation ever came to be rendered on record qua the possession of aforesaid commercial quantity of contraband, police after completion of necessary codal formalities, lodged the FIR, as detailed hereinabove, and since then bail petitioner is behind the bars, whereas co-accused namely Kuldeep Singh i.e. driver, stands enlarged on bail vide order dated 05.07.2024 passed by this Court in Cr.MP(M) No.1394/2024.
Since, investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court for grant of regular bail primarily on the ground of inordinate delay in conclusion of trial.
4. Mr. Janmajai Chauhan, learned counsel representing the petitioner, states that petitioner is behind the bars for more than 2 years and 8 months, but till date, prosecution has not been able to examine all the prosecution witnesses, as a result thereof, trial is being delayed. He states that petitioner is behind the bars for no fault of him because bare perusal of evidence adduced on ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 3 record till date, nowhere suggests that commercial quantity of contraband was recovered from his conscious possession. While .
referring to the various judgments passed by Hon'ble Apex Court as well as this Court, Mr. Chauhan, learned counsel for the petitioner states that prayer made on behalf of the petitioner for grant of bail deserves to be allowed on the ground of inordinate delay in conclusion of trial. He specifically invited attention of this Court to the judgment dated 9.4.2024 passed by this Court in Cr.MP (M) No.473 of 2024, titled as Leeladhar versus State of Himachal Pradesh, whereby this Court having taken note of number of judgments passed by Hon'ble Apex Court, proceeded to grant bail in the case of commercial quantity on the ground of inordinate delay in conclusion of trial.
5. While fairly acknowledging factum with regard to filing of the Challan in the competent Court of law, Mr. Vishal Panwar, learned Additional Advocate General, contends 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. Learned Additional Advocate General states that as of today, only five prosecution witnesses remain to be examined and for this purpose, court below has already fixed the matter on 28 th August, 2024 and as such, prayer made on behalf of the petitioner for grant of bail on ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 4 the ground of inordinate delay in conclusion of trial cannot be accepted, rather direction can be issued to the Court below to .
conclude the trial expeditiously. Learned Additional Advocate General further states that though no case in past has been registered against the petitioner, but having taken note of commercial quantity recovered from conscious possession of the bail petitioner, it can be safely presumed that he indulges in illegal trade of narcotics and as such, in the event of his being enlarged on bail, he may not only flee from justice, but may again indulge in these activities.
6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that commercial quantity of contraband came to be recovered from the car being driven by the petitioner in the presence of independent witnesses and as such, this Court is not persuaded to agree with the submission of learned counsel for the petitioner that petitioner has been falsely implicated. However, having taken note of precise prayer made on behalf of the petitioner for grant of bail on the ground of inordinate delay in conclusion of trial, this Court finds the case at hand to be fit, for considering the prayer for grant of bail on the ground of inordinate delay in conclusion of trial .
7. Admittedly, in the case at hand, FIR was lodged on 19.11.2021 and on the same day, bail petitioner was arrested, but ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 5 till date, prosecution has been able to examine 16 witnesses and for recording the statements of remaining witnesses, Court below .
though has fixed the matter on 28.08.2024, but it cannot be said that on the next date of hearing, all the prosecution witnesses shall be examined.
8. No doubt, commercial quantity of contraband came to be recovered from the vehicle being driven by the co-accused Kuldeep Singh and as such, rigours of Section 37 are attracted, but bare perusal of Section 37 of the Act clearly reveals that there is no complete bar for the Court to grant bail in the cases involving commercial quantity, but Court while doing so, at the first instance is required to provide adequate opportunity of being heard to the public prosecutor and thereafter, if it has reason to presume and believe that the person, seeking bail, has been falsely implicated and there is no likelihood of his indulging in such activities again, it can proceed to grant bail in cases involving commercial quantity of contraband. No doubt, at present there, is nothing to suggest that petitioner has been falsely implicated, but certainly having taken note of the fact that in past, no case has been registered against the bail petitioner, there is reason to presume and believe that in the event of petitioner's being enlarged on bail, he would not indulge in these activities again.
::: Downloaded on - 18/07/2024 20:31:23 :::CIS 69. Though, it has been also argued on behalf of the petitioner that no independent witness was associated because .
recovery has been effected in presence of police officials, but such plea, if any, cannot be taken into consideration at this stage, rather same shall be dealt with in accordance with law by the trial Court in totality of evidence to be led on record by the prosecution.
However, having taken note of the fact that bail petitioner is behind the bars for more than 2 years and 8 months and still five prosecution witnesses remain to be examined, prayer made on behalf of the petitioner for grant of bail on the ground of inordinate delay deserves to be allowed.
10. No doubt, as of today, only five prosecution witnesses remain to be examined, but this Court cannot lose sight of the fact that it took almost 2 years and 8 months for the prosecution to examine 16 witnesses, meaning thereby considerable time is likely to be consumed in the conclusion of trial.
11. 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:-
"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.::: Downloaded on - 18/07/2024 20:31:23 :::CIS 7
(See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 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).
12. Reliance is placed upon judgment passed by Hon'ble Apex Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:
"18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse 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 harmonised. 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 the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
13. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
"2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 8 Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases .
pending against him. Learned counsel for the accused-
respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed."
14. In the aforesaid judgment, Hon'ble Apex Court has held that while considering the prayer for grant of bail, 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.
15. 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 ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 9 likelihood of conclusion of trial in near future, subject to certain conditions. At this stage, learned Additional Advocate General .
while inviting attention of this Court to the judgment passed by Hon'ble Apex Court in Gurwinder Singh vs. State of Punjab(2024 INSC 92), states that merely delay in trial pertaining to grave offence as one involved in the instant case cannot be used as a ground to grant bail. Before ascertaining the merit of aforesaid submission made by learned Additional Advocate General, it may be apt to take note of following para of the judgment rendered by Hon'ble Apex Court in Gurwinder Singh case hereinbelow:-
"32. The Appellant's counsel has relied upon the case of KA Najeeb (supra) to back its contention that the appellant has been in jail for last five years which is contrary to law laid down in the said case. While this argument may appear compelling at first glance, it lacks depth and 22 substance.
In KA Najeeb's case this court was confronted with a circumstance wherein except the respondent-accused, other co-accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore this court's decision to consider bail was grounded in the anticipation of the impending sentence that the respondent accused might face upon conviction and since the respondent-accused had already served portion of the maximum imprisonment i.e., more than five years, this court took it as a factor influencing its assessment to grant bail. Further, in KA Najeeb's case the trial of the respondent-accused was severed from the other co- accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore this court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 10 members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is .
every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. 23 Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted."
16. No doubt, in the aforesaid judgment, Hon'ble Apex Court has held that mere delay in trial pertaining to grave offences as one involved in that case cannot be used as a ground to grant bail, but before applying ratio of aforesaid judgment in the case at hand, if any, it needs to be noted that facts of the case before Hon'ble Apex were all together different from the facts of the present case. In the case before the Hon'ble Apex Court the petitioner was accused of her being involved in terrorist activities backed by the members of banned terrorist organization, involving exchange of large quantum of money through different channels, whereas in the present case petitioner is accused of having smuggled commercial quantity of contraband, which fact is otherwise yet to be established on record by leading cogent and convincing evidence. Moreover, this Court finds that after passing of aforesaid judgment in Gurwinder Singh case(supra), Hon'ble Apex Court in another case tilted Soma Kanti Sen vs. The State of Maharashtra and another, Cr. Appeal No.2595 of 2023, decided on 5.4.2024, has reiterated that Constitution Court is not strictly bound by the prohibitory provisions of grant of bail in the ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 11 1967 Act and can exercise its constitutional jurisdiction to release an accused on bail, who has been incarcerated for a long period of .
time relying on Article 21 of the constitution of India. Aforesaid finding returned by Hon'ble Apex Court is based upon the judgment earlier rendered by Hon'ble Apex Court in K. A. Najeeb vs. Union of India (2021) 3 SCC 713.
17. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.
18. Needless to say, 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, bail is not to be withheld as a ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 12 punishment. Otherwise also, normal rule is of bail and not jail.
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.
19. 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 the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
20. 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.
21. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of ::: Downloaded on - 18/07/2024 20:31:23 :::CIS 13 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 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.
22. The Apex Court in Prasanta Kumar Sarkar versus Ashis 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 case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
23. 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 to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
::: Downloaded on - 18/07/2024 20:31:23 :::CIS 14(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;
(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/her 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 surrender his passport, if any, before the r investigating agency.
It is clarified that if the petitioner misuses the liberty or
24. violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
25. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.
26. The petitioner is permitted to produce copy of 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.
(Sandeep Sharma) Judge July 17, 2024 (Rajeev Raturi) ::: Downloaded on - 18/07/2024 20:31:23 :::CIS