Himachal Pradesh High Court
Ramanand Sharma vs State Of H.P on 13 March, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.M.P.(M) No. 278 of 2023
Decided on: 13.03.2023
.
Ramanand Sharma ......Petitioner
Versus
State of H.P. ...... Respondent
...........................................................................................
Coram
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner :
For the respondent :
r to Mr. Vivek Sharma, Advocate.
Mr. Y.P.S. Dhaulta, Mr. Navlesh
Verma, Additional Advocates
General with Ms. Seema
Sharma and Mr. Sumit Sharma,
Deputy Advocates General.
ASI Amar Datt, P.S. Rajgarh,
present in person.
Jyotsna Rewal Dua, J (Oral)
Petitioner is accused in FIR No.29/2021, dated 29.03.2021, registered under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 at Police Station Rajgarh, District Sirmaur, H.P. He was arrested on 23.03.2021 and has prayed for releasing him on regular bail in the instant petition.
2. The gist of the allegations levelled by the prosecution in its status report as well as in the record produced today is that a 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 16/03/2023 20:32:20 :::CIS 2police party was patrolling the area in question on 29.03.2021. At around 3.30 P.M. the patrolling party, on the basis of suspicion, .
stopped the petitioner, a pedestrian. From a bag held by him, cannabis weighing 2.04 Kilograms was recovered alongwith the currency notes valuing Rs.4670/-. This recovery led to the registration of the FIR in question. It is also the case of the respondent that during investigation, the petitioner disclosed having procured the recovered cannabis from certain persons of Nepali origin and that he intended to sell the same in 'Kumbh Mela' at Haridwar. Further that for the said purpose, he was going to Haridwar. According to the status report, the investigation carried out by the respondent led to an inference about the involvement of petitioner in sale & purchase of contraband for the past many years, which necessitated carrying out financial investigation in the matter.
3. I have heard learned counsel for the petitioner, learned Deputy Advocate General and also perused the status report as well as the record produced by the respondent.
4. Learned counsel for the petitioner has prayed for releasing the petitioner on bail on ground of delayed trial. He has placed reliance upon the judgments of this Court in Cr.MP(M) No. 2271/2022 dated 01.12.2022 (Mangal Chand Vs. State of H.P.) and Cr.MP(M) No. 2822/2022 dated 10.01.2023 (Deep Raj @ Neetu Vs Vs. State of H.P.) wherein reference has inter alia been made to the ::: Downloaded on - 16/03/2023 20:32:20 :::CIS 3 judgment passed by the Hon'ble Apex Court in (2022) 3 RCR (Criminal) 906 (Mahmod Kurdeya Vs. Narcotics Control Bureau).
.
Learned Deputy Advocate General opposed the bail application on the ground that commercial quantity of cannabis weighing 2.04 kgs was recovered from the petitioner. It was submitted that his release would adversely affect the interest of society, which ought to be protected from increasing drug menace in the society.
5(i) Petitioner's initial bail petition bearing Cr.MP(M) No.1729/2021 was dismissed as withdrawn on 24.09.2021. His second bail petition bearing Cr.MP(M) No. 2726/2022 was disposed on 30.12.2022 with the following order:-
"The petitioner seeks regular bail in FIR No.29/2021, dated 29.03.2021, registered at Police Station Rajgarh, District Sirmour, H.P., under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. The petitioner was arrested in this case on 29.03.2021.
2. The allegations against the petitioner in the afore-
numbered FIR are regarding possession of commercial quantity of Cannabis. Status report filed by the respondent mentions that out of 21 prosecution witnesses, statements of 10 witnesses have been recorded. The matter is stated to be listed before the learned Trial Court on 19.01.2023 for recording the statements of five prosecution witnesses. In view of the above, learned counsel for the petitioner does not press the bail petition at this stage and seeks liberty to file a fresh petition at an appropriate stage in accordance with law, if need so arises in future. The present bail petition is accordingly dismissed with leave and liberty as aforesaid. Pending miscellaneous application(s), if any, also stand disposed of."::: Downloaded on - 16/03/2023 20:32:20 :::CIS 4
In the aforesaid petition, the respondent had projected that out of 21 prosecution witnesses, statements of 10 witnesses had .
already been recorded by that time and further that the matter was listed before the learned Trial Court on 19.01.2023 for recording the statements of five prosecution witnesses. It was on such presentation that the learned counsel for the petitioner had sought permission to withdraw the aforesaid bail petition at that stage.
5(ii) Learned counsel for the petitioner emphasized that respondent had been delaying the trial. He submitted that no witness was examined on 19.01.2023 by the prosecution. The trial did not progress at all after 30.12.2022. Upon hearing learned counsel for the petitioner on 03.03.2023, notice was issued to the respondent/State for filing its status report also detailing therein the proceedings that were stated to be scheduled before the learned Trial Court on 19.01.2023 as noticed in the order dated 31.12.2022, passed in Cr.MP(M) No. 2726/2022. The respondent filed the status report on 10.03.2022, however, information required in terms of order dated 03.03.2023 was not supplied. During hearing of the case today, learned Deputy Advocate General placed on record fresh status report of today's date (13.03.2023), relevant portion whereof is as under (translation):-
"........On 19.01.2023, the PWs were called for evidence. Out of these PW H.C. Rakesh Kumar No.224 and Sh. Bhishm Thakur Dy.SP had sent requests, PW Surjit Singh No.480 was on ::: Downloaded on - 16/03/2023 20:32:20 :::CIS 5 sanctioned leave and PW Arvind No.619 PSO was away on duty. The defence counsel has argued that all witnesses of spot should be called together so that evidence can be led together because of .
which PW's numbered 4 to 8 & 19 have been fixed for evidence on 1.6.2023......."
Fresh status report makes it evident that the respondent prosecution has been delaying the trial. H.C. Rakesh Kumar No.224 and Sh. Bhishm Thakur, Dy. SP chose not to attend the trial on 19.1.2023 for their own reasons. Constable Surjit Singh No.480 also did not attend the trial proceedings on 19.01.2023 on account of his sanctioned leave. Another prosecution witness Constable Arvind No.619 PSO was stated to be away on duty on the day of proceedings. It is for the prosecution to take all requisite steps for expeditious disposal of the trial in order to ensure protection of rights of the accused persons for the speedy trial. Just because the prosecution is not in a position to lead its evidence, the petitioner cannot be made to suffer. The petitioner is aged 75 years. His medical record appended with the petition shows him to be suffering from various old age ailments. The police official who attended today's hearing categorically submitted that nothing incriminating was found against the petitioner in the financial investigation.
Hon'ble Apex Court has repeatedly held that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal ::: Downloaded on - 16/03/2023 20:32:20 :::CIS 6 liberty for some period may not be avoidable, but period of deprivation of pending trial cannot be unduly long [2022 (3) SCC, .
695, titled Ashim & Asim Kumar Haranath Bhattacharya alias Asim Harinath Bhattacharya alias Aseem Kumar Bhattacharya Versus National Investigating Agency].
In 2021(3) SCC, 713, Union of India Versus K.A.Najeeb, Hon'ble Apex Court considered various judicial precedents where Article 21 of the Constitution of India was invoked in case of gross delay in disposal of cases of under trials and consequential necessity to release them on bail. The earlier decisions were reiterated that liberty granted by Part-III of the Constitution, would cover within its protective ambit not only due procedure and fairness, but also access to justice and speedy trial. It was held that once it is obvious that a timely trial would not be possible and the accused have suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail. Some relevant paras from the judgments are extracted hereinafter:-
"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 ::: Downloaded on - 16/03/2023 20:32:20 :::CIS 7 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 43D .
(5) of UAPA.
11. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn, 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, 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 (" the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba 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.
::: Downloaded on - 16/03/2023 20:32:20 :::CIS 813. We may also refer to the orders enlarging similarly situated accused under the UAPA passed by this Court 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 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on ::: Downloaded on - 16/03/2023 20:32:20 :::CIS 9 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 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."
Hence in the facts and circumstances of the case, even though the petitioner is accused of possessing commercial quantity of contraband, failure of the prosecution to produce its witnesses, cannot be a hindrance forever in petitioner's right of speedy trial. In case prosecution is not in a position to timely examine its witnesses, benefit has to be given to the petitioner. Petitioner aged 75 years, is languishing in jail for about two years. He cannot be left to incarcerate indefinitely during pendency of the trial that is no where near conclusion. Petitioner is a local resident of V.P.O Deothi Majhgaon, Tehsil Rajgarh, District Sirmour H.P. There is no apprehension that he will flee from justice. For the foregoing reasons, the instant petition is allowed. Bail petitioner is ordered to be released in the above mentioned FIR, subject to his furnishing ::: Downloaded on - 16/03/2023 20:32:20 :::CIS 10 personal bond in the sum of Rs.50,000/-with one local surety in the like amount to the satisfaction of the learned trial Court having .
jurisdiction over the concerned Police Station, subject to the following conditions:-
(i). The petitioner shall join and co-operate the investigation of the case as and when called for by the Investigating Officer in accordance with law.
(ii). The petitioner shall not tamper 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). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(v). Petitioner shall not leave territorial jurisdiction of State of Himachal Pradesh without informing the concerned SHO.
(vi). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer, complainant 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.
(vii). 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.
::: Downloaded on - 16/03/2023 20:32:20 :::CIS 11In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate .
application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove. r With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
Learned Additional Advocate General to bring this order to the notice of the Director General of Police Himachal Pradesh & the Director of Prosecution, H.P. for ensuring speedy disposal of the trials.
Jyotsna Rewal Dua Judge 13th March 2023 (Rohit) ::: Downloaded on - 16/03/2023 20:32:20 :::CIS