Himachal Pradesh High Court
Ajeet Singh vs State Of Himachal Pradesh on 15 June, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1264 of 2023 Decided on: 15th June, 2023
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Ajeet Singh .....Petitioner
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Versus
State of Himachal Pradesh .....Respondent
------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting? 1 For the Petitioner: Mr. Rakesh Kumar Chaudhary, Advocate.
For the Respondent:
r Mr. Sumit Sharma, Deputy Advocate General.
SI Nand Lal, Police Station Patalikuhal, District Kullu, H.P., present in person alongwith record.
------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge The petitioner was arrested on 25.01.2020 in FIR No.20/2020, dated 25.01.2020, registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') at Police Station Patlikuhal, District Kullu, H.P.. He prays for grant of regular bail in this petition.
2. The prosecution case is that on 25.01.2020, a police party was patrolling its jurisdictional area. At about 1 Whether reporters of print and electronic media may be allowed to see the order?
::: Downloaded on - 15/06/2023 20:32:34 :::CIS 26:40 a.m., while police party was at Balu Padhar, it noticed a person coming from Karal road side, holding a carry bag in his right hand. On seeing the police party, said person turned back and threw the carry bag towards the bushes.
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He started walking briskly towards the side from where he had come. His reaction raised suspicion in the minds of the police officials. The petitioner was apprehended. He could not satisfactorily reply to the questions of the police personnel and appeared to be perplexed. Despite efforts, independent witnesses could not be associated during search, which was otherwise carried out in accordance with law. During his search, cannabis weighing 1.78 Kg. was recovered from the carry bag held by him. On completion of codal formalities, FIR was registered and the petitioner was arrested. During investigation, the petitioner is said to have disclosed having purchased the recovered contraband from one Naval Kishore. Said Naval Kishore was also arrested on 25.01.2020. The call detail record was procured by the respondent, which showed exchange of calls between two co-accused.
3. Learned counsel for the petitioner submitted that the petitioner has not committed the offence as alleged by the respondent in the FIR. The co-accused, Naval ::: Downloaded on - 15/06/2023 20:32:34 :::CIS 3 Kishore, had already been enlarged on regular bail in terms of decision dated 06.01.2021, rendered in Cr.MP(M) No. 1939 of 2020. The petitioner is languishing in the jail ever since 25.01.2020. The integral and essential fundamental .
rights of life and liberty enshrined in Rule 21 of the Constitution of India is being denied to the petitioner.
Hence, prayer has been made for enlarging the petitioner on regular bail. Learned counsel further submitted that the petitioner will abide by all the conditions, which may be imposed upon him in case of grant of bail and that he will not influence the prosecution witnesses or tamper with the prosecution evidence in any manner.
Learned Deputy Advocate General submitted that there are total fourteen witnesses in the case, out of which, one witness was examined in the year 2021, two witnesses were examined in the year 2022 and two witnesses were examined in the year 2023 thus far. Thus, in all, nine witnesses remain to be examined. The petitioner is accused of possessing commercial quantity of contraband. Provisions, of Section 37 of the Act are attracted. The petitioner has failed to satisfy the rigors of Section 37 of the Act, hence, he is not entitled for bail.
::: Downloaded on - 15/06/2023 20:32:34 :::CIS 44. Observations:-
4(i). Since quantity of the contraband recovered in the FIR is commercial, therefore, provisions of Section 37 of the NDPS Act are attracted, which read as under:-
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"37. Offences to be cognizable and non-bailable.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 of section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."
In order to avail bail, the petitioner has to satisfy following twin conditions imposed in Section 37 of the NDPS Act:-
"(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and
(ii) Petitioner is not likely to commit any offence while on bail."
Hon'ble Apex Court in (2020) 12 SCC 122, titled State of Kerala and others Versus Rajesh and others, after considering various pronouncements held that the expression 'reasonable grounds' used in Section 37 of ::: Downloaded on - 15/06/2023 20:32:34 :::CIS 5 the NDPS Act means something more than prima-facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of alleged offence. It would be appropriate to extract relevant paras from the .
judgment:-
"19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the Cr.PC, but is also subject to the limitation placed by Section 37 which commences with non- obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.
20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the Cr.PC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
4(ii). Present was a case of recovery of commercial quantity of the contraband allegedly recovered from the carry bag held by the petitioner. The recovery was effected on 25.01.2020 at around 6:40 a.m. As per status report, ::: Downloaded on - 15/06/2023 20:32:34 :::CIS 6 despite efforts, independent witnesses could not be associated in the search and seizure operation. The co-
accused, from whom the petitioner statedly purchased the contraband in question, was ordered to be enlarged on .
regular bail on 06.01.2021. The petitioner's previous bail petitions were dismissed as withdrawn. He has now completed more than three years in custody.
4(iii). SLP (Crl.) No. 915 of 2023 (Mohd Muslim @ Hussain Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein facing charge under Section 29 of the Act and suffering incarceration for over seven years was granted bail on account of delay in trial. Hon'ble Court, inter-alia, reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and (2022) 6 SLR 382 (Vijay Madan Lal Chaudhary Vs Union of India) were also observed wherein it was concluded that statutory restrictions like "section 43-D(5) of UAPA cannot fetter a constitutional Court's ability to grant bail on ground of violation of fundamental right" ..... "If the parliament provides for stringent provision of no bail unless ::: Downloaded on - 15/06/2023 20:32:34 :::CIS 7 the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to .
one and half of the maximum period of imprisonment specified for the concerned offence by law. (2022) 10 SCC 51 (Satender Kumar Antil Vs. CBI) was also considered, where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 of NDPS Act. In Mohd. Muslim's case (supra), it was held as under with reference to expression "not guilty of such offence":-
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a 18 As per the counter- affidavit dated 21.02.2023 filed by the respondent-state before this court. prima facie determination. That places the court's discretion within a very narrow margin.
Given the mandate of the general law on bails (Sections 436, 437 and 439, Cr.PC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have ::: Downloaded on - 15/06/2023 20:32:34 :::CIS 8 the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to .
address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws - be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."::: Downloaded on - 15/06/2023 20:32:34 :::CIS 9
According to the respondent, prosecution has to examine fourteen witnesses in all, out of which only five witnesses have been examined as on date that too spreading over a period of three years. Statements of nine .
witnesses are yet to be recorded. Looking at the pace of the trial , it is apparent that trial of the case will take long time to conclude. Taking into consideration the facts and circumstances of the case in the backdrop of law laid down in Mohammad Muslim's case, supra and the period spent by the petitioner in custody coupled with the fact that trial of the case will take long time to conclude, the petitioner, at this stage, has made out a case for his enlargement on regular bail.
In view of all the aforesaid reasons, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-
(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.::: Downloaded on - 15/06/2023 20:32:34 :::CIS 10
(ii). The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.
(iii). The petitioner will not leave India without prior permission of the Court.
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(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer 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.
(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(vi). 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.
(vii). Petitioner shall not indulge in any criminal activities. It is made clear that in case the petitioner is arraigned as an accused in future in any FIR, then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be considered as a negative factor for consideration of his future bail application, if any.
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 ::: Downloaded on - 15/06/2023 20:32:34 :::CIS 11 merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.
With the aforesaid observations, the present .
petition stands disposed of, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
June 15, 2023 Judge
(R.Atal)
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