Himachal Pradesh High Court
Kaul Ram vs State Of Himachal Pradesh on 4 January, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2836 of 2022
Decided on : 04.01.2023
.
Kaul Ram ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
For the petitioner
For the respondent
Whether approved for reporting? 1 Yes
:Mr. Yashveer Singh Rathore, Advocate.
:Mr. Manoj Chauhan and Mr.
Varun Chandel, Additional Advocate
Generals.
SI Karam Chand, I/O P.S. Bhunter
in person alongwith record.
Satyen Vaidya, Judge (Oral)
Petitioner is an accused in case FIR No. 267/2019, dated 20.11.2019, registered under Section 20 of Narcotic Drugs and Psychotropic Substances, Act (for short 'ND&PS' Act), at Police Station Bhuntar, District Kullu, H.P. Petitioner is in custody since 20.11.2019.
1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/01/2023 20:34:43 :::CIS 22. Petitioner is facing trial for offences under Section 20 of ND&PS Act in pursuance to challan filed by respondent. The allegation against .
petitioner is that on 20.11.2019, at about 8:15 am on way leading to Village Bagi Shahri, he was found alongwith his co-accused Chet Ram and Krishan Chand with a bag in the right hand of accused
3.
r to Chet Ram from which 5.679 Kgs of 'Charas' was recovered.
Petitioner has now prayed for grant of bail on the ground that his constitutional right of expeditious disposal of trial has been infringed. As per petitioner, he is in custody more than three years now and the trial has not concluded, rather, it is progressing at snails pace.
4. In its status report dated 04.01.2023, respondent has submitted that PW-1 and PW-2 have now been summoned for 04.03.2023 for examination before learned Special Judge.
5. Learned Additional Advocate General has opposed the prayer of the petitioner, on the ground ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 3 that Section 37 of ND&PS Act, has application in the facts of the case and merely, on the ground of delay in conclusion of trial, petitioner cannot be .
released on bail.
6. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.
7. to 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?
8. It is submitted by learned counsel for the petitioner that till date only eight witnesses have been examined and ten more witnesses ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 4 remain to be examined, despite the fact that petitioner is in custody since 20.11.2019. In the considered view of this Court, the Constitutional .
guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.
9. Recently, in a number of cases, under-trials been allowed r to for offences involving commercial quantity of contraband under ND&PS Act have the liberty of bail by Hon'ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.
10. 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."
11. In Nitish Adhikary @ Bapan Vs.The State of West Bengal (Special Leave to Appeal ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 5 (Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022, Hon'ble Supreme Court has held as under:-
.
"During the course of the hearing, we are informed that the petitioner 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 inclined to grant bail to the petitioner."
12. In Gopal 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 8,20,27-AA, 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 Advocate 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 ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 6 appellant, in our view the case for bail is made out."
13. 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 examined 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 circumstances on record, in our view, case for bail is made out."
14. 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 1-3-2020 and has suffered incarceration for over 2 years and 5 months and there being no likelihood of completion of trial in the near future, which fact cannot be controverted by the learned counsel appearing for the UT, we are inclined to enlarge the petitioner on bail.".
15. In addition, different Co-ordinate Benches of this Court have also followed precedent ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 7 to grant bail to the accused in ND&PS Act, on the ground of prolonged pre-trial 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.
16. Reverting r to to the facts of the case, the petitioner is in custody since 20.11.2019 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.
17. Co-accused of petitioner has already been ordered to be released on bail, vide order dated 23.12.2022 in Cr.MP. No. 2570 of 2022.
18. 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. 267/2019, dated 20.11.2019, registered under Section 20 of ND&PS, Act, at ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 8 Police Station Bhuntar, 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.
19. Any expression of opinion herein-above 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)
4th January 2023 Judge
(sushma)
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