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2021 DIGILAW 355 (HP)

Vishamber Isiah Striesand v. State Of H. P.

2021-06-23

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The extant bail application has been instituted under Section 439 of the Code of Criminal Procedure. Through, the extant bail application, the petitioner seeks his being granted, the, facility of bail in connection with FIR No. 30, of 17.2.2017, lodged under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, at Police Station Manali, District Kullu, H.P. The seizure as made from his alleged conscious and exclusive possession weighs commercial quantity thereof. 2. Earlier, the petitioner had cast Cr.MP(M) No. 198 of 2019 before this Court. The afore Cr.MP(M) No. 198 of 2019 was dismissed by this Court on 13.03.2019. The bail petitioner challenged the afore made order by this Court, upon, Cr.MP (M) No. 198 of 2019, through his instituting SLP (Crl.) No. 4047 of 2019 before the Hon'ble Apex Court. The Hon'ble Apex Court declined to interfere with the verdict made by this Court, on 13.03.2019, upon, Cr.MP(M) No. 198 of 2019. The verdict made by the Hon'ble Apex Court, upon, SLP (Crl.) No. 4047 of 2019, on 08.05.2019 is extracted hereinafter:- "We are not inclined to interfere with the impugned judgment and order. Consequently, the special leave petition is dismissed. However, we expect the trial court to proceed expeditiously with the matter. In case trial is not concluded within one year from today, liberty to the petitioner to again apply for bail before the trial court. A copy of the order be sent to the trial court." 3. The learned counsel appearing for the petitioner, has contended with much vigour before this Court, that since the verdict made by the Hon'ble Apex Court, upon, the afore SLP, was made on 8.05.2019, and, when therein it has been mandated that in case the trial arising from FIR No. 30, of 17.02.2017, containing offences committed under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, and, registered at Police Station Manali, District Kullu, H.P., is not concluded, within one year to be computed from 08.05.2019, thereupon, liberty was reserved to the petitioner to again apply for bail before the learned trial Court. Consequently, he argues that since in pursuance to the afore liberty reserved to the petitioner, he proceeded to apply for bail before the learned trial Court, hence, the dismissal of his bail, application by the learned trial Court, through an order made on 23.05.2020, is, per se bad in law. 4. Even though, the order made by the learned Special Judge on 23.05.2020, hence, dismissing his application for bail, as became preferred by him before it, was challengeable through his instituting a Criminal Revision petition before this Court. However, merely want of the petitioner recoursing the appropriate remedy of his instituting a criminal revision before this Court against the order made by the learned Special Judge on 23.05.2020, may not, in the larger interest(s) of justice, bar this Court to entertain the extant bail application bearing No. 786 of 2021. 5. Initially, the learned counsel appearing for the petitioner has made a strong submission before this Court, that owing to the prevalence of the ongoing pandemic, the recording of the statements of the prosecution witnesses is halted/paused, and, also further argues, that since obviously there is a concomitant delay, in the conclusion of the trial, by the learned Special Judge concerned, as, arises from FIR No. 30, of 17.2.2017, constituting therein offences punishable under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, registered at Police Station Manali, District Kullu, H.P. Consequently, he argues that since the Hon'ble Apex Court in a case titled as Amit Singh Moni vs. State of H.P., Cr. Appeal No. 668 of 2020 (SLP (Criminal) No. 3813 of 2020), decided on 12.10.2020, the relevant paragraph whereof, stands extracted hereinafter, has proceeded, to, on the parameter(s) of pausing(s) or stoppage(s) of the recording(s) of statements of prosecution witnesses concerned, and, as may arise from the ongoing pandemic, rather even qua recovery(ies) of commercial quantity(ies) of narcotic drugs and psychotropic substances, as made, from the exclusive and conscious possession of the accused, hence grant the facility of bail to the accused concerned, thereupon, the petitioner, too, is entitled to, on a similar thereto parameter(s), his being enlarged on bail. The relevant paragraph thereof reads as under:- "It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The relevant paragraph thereof reads as under:- "It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witnesses was examined in February, 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that the appellant was taken in custody on 23.02./2018 and, as such, he has completed more than 2 years 7 months of actual custody. Considering the facts and circumstances on record, in our view, the appellant is entitled to the benefit under Section 439 of the Code. We order accordingly." 6. The afore submission cannot weigh with this Court. The reason for forming the afore conclusion, arises from, the fact that though the Hon'ble Apex Court, had hence accepted the afore pleaded factum of stoppage(s) or pausing(s) of trial, and, of concomitant delays arising from non examination of the prosecution witnesses, and, as arose from the ongoing pandemic. However, the Hon'ble Apex Court, had also, in the subsequent thereto paragraph(s), has made mention of the facts, and, circumstances on record, rather inclining it to grant bail to the accused therein. Consequently, it appears that the Hon'ble Apex Court had after bearing in mind all the facts, and, circumstances on record, had proceeded to grant the facility of bail to the applicant therein one Amit Singh Moni. The further effect thereof is that, if any, pausing(s) or halting(s) of the trial, on account of the ongoing pandemic, does not appear, to constitute a weighty or strong reason with the Hon'ble Apex Court, for granting bail to the applicant therein. Therefore, the afore made submission is ridden with a fallacy, and, is rejected. 7. Be that as it may, the verdict made by this Court on 13.03.2019, upon, Cr.MP(M) No. 198 of 2019, was affirmed by the Hon'ble Apex Court. However, as afore stated upon trial, in case FIR No. 30, of 17.02.2017, containing therein offences punishable under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, registered at Police Station Manali, District Kullu, H.P., hence not concluding within one year from 08.05.2019, rather merely a liberty was reserved to the petitioner to again apply for bail before the learned trial Court. Obviously, since a reading of the order made by the Hon'ble Apex Court, upon Cr. Obviously, since a reading of the order made by the Hon'ble Apex Court, upon Cr. Appeal No. 668 of 2020, titled as Amit Singh Moni vs. State of H.P., does not make, any echoing that the ongoing pandemic being the relevant factor for granting the bail to the applicant therein, as contended, before this Court. Therefore, with the weight of the afore submission becoming blunted, does, also for the hereinafter assigned reasons, renders completely eclipsed the argument(s) that, the afore liberty as reserved to the petitioner inasmuch, as, upon, the trial arising from FIR No. 30, of 17.2.2017, containing offences under Sections 20 and 21 of the Narcotic Drugs and Psychotropic Substances Act, registered at Police Station Manali, District Kullu, H.P., rather not concluding within one year from 8.05.2019, per se hence entitling the petitioner to be enlarged on bail. (I) since, from March, 2021, there was restricted functioning of the learned trial Courts, and, as became engendered from the ongoing pandemic, hence, no responsibility for the relevant delay, can be ascribed either to the prosecution or to the learned trial Court, for not concluding the trial arising from FIR No. 30 of 17.02.2017, (ii) thereupon, any want of conclusion of trial arising from FIR No. 30 of 17.02.2017, by the learned Special Judge concerned, when becomes not ascribable to any lapse or shortcomings, on his part or on the part of the prosecution, (iii) and, also when want of conclusion thereof, within one year from 08.05.2019, is sparked from restricted functioning(s) of the learned trial Courts, as, arose from the ongoing pandemic, (iv) thereupon, no benefit can accrue to the petitioner, that merely, upon the afore liberty becoming reserved to him, his being entitled to be released on bail. 8. Even otherwise, the seizure as made from the alleged exclusive and conscious possession of the accused, is of a commercial quantity, and, earlier this Court has rejected his bail application, and, the order rejecting his bail application became affirmed by the Hon'ble Apex Court. Consequently, on merits too, also this Court rather refrains from according the indulgence of bail to the bail applicant. 9. In addition, the Hon'ble Apex Court while making a decision upon Cr. Appeal No. 284 of 2021, titled as Union of India vs. Prateek Shukla, decided on 8 th March, 2021, the relevant paragraphs whereof stand extracted hereinafter:- "11. Consequently, on merits too, also this Court rather refrains from according the indulgence of bail to the bail applicant. 9. In addition, the Hon'ble Apex Court while making a decision upon Cr. Appeal No. 284 of 2021, titled as Union of India vs. Prateek Shukla, decided on 8 th March, 2021, the relevant paragraphs whereof stand extracted hereinafter:- "11. Ex facie, there has been no application of mind by the High Court to the rival submissions and, particularly, to the seriousness of the allegations involving an offence punishable under the provisions of the NDPS Act. Merely recording the submissions of the parties does not amount to an indication of a judicial or, for that matter, a judicious application of mind by the Single Judge of the High Court to the basic question as to whether bail should be granted. The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. There has been a serious infraction by the High Court of its duty to apply the law. The order granting bail is innocent of an awareness of the legal principles involved in determining whether bail should be granted to a person accused of an offence under the NDPS Act. The contention of the respondent that he had resigned from the Company, Altruist Chemicals Private Limited, must be assessed with reference to the allegations in the criminal complaint which has been filed in the Court of the District and Sessions Judge. Gautam Budh Nagar (Annexure P-6). The relevant part of the complaint reads as follows: "18. That during investigation of the case, letter dated 27.11.2018 was sent to the Registrar of Companies for providing details of the Directors etc of the company in question i.e. U/s Altruist Chemicals Pvt Ltd and vide its report dated 03.12.2018 Registrar of Companies provided the said information and from the perusal of said information/documents, it reveals that accused Prateek Shukla and Bismillah Khan are the Directors.Accused Himanshu Rana was also Director but he has resigned from the directorship. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises." 12. From the perusal of the documents, it also reveals that they had registered the company, i.e., Altruist Chemical Pvt. Ltd. At 001, Block Ab-Sector-45, Noida, which is a residential area and accused persons also obtained Unique Registration No. from the NCB on the above said premises." 12. We may also note at this stage the contention of the respondent in the application for bail which was filed before the High Court (Annexure P-8) that he had transferred 99% of his shareholding in the Company to Bismilla Khan Ahmadzai. Bismilla Khan Ahmadzai, as the prosecution alleges at this stage, is an Afghan national. The application for bail which had been filed before the High Court as well as the counter affidavit which has been filed in the present proceedings suppress more than what they disclose. Be that as it may, we are of the view that the High Court was clearly not justified in granting bail and the reasons provided by the High Court, as we have already indicated above, do not reflect application of mind to the seriousness of the offence which is involved. Indicating that the respondent as an educated person with a Bachelor of Technology "may not commit any offence" is an extraneous circumstance which ought not to have weighed with the High Court in the grant of bail for an offence under the NDPS Act. (a) has made clear expostulation(s) of law that great care and caution is to be visited by the learned trial Court(s) concerned, while dealing with application(s) for bail, as, moved under the provisions of Narcotic Drugs and Psychotropic Substances Act. Since this Court has inconformity with the afore expostulation of law rather rejected the earlier bail application, as, moved before this Court, by the bail applicant. Moreover, when the order made by this Court, upon, Cr.MP(M) No. 198 of 2019, on 13.03.2019, has been affirmed by the Hon'ble Apex Court, on 8.05.2019. Consequently, and, since for the aforestated reason, the factor of the ongoing pandemic, and, of delay, has been hereinbefore concluded to be holding no weight, therefore, this Court declines to grant the facility of bail to the bail petitioner. Consequently, and, since for the aforestated reason, the factor of the ongoing pandemic, and, of delay, has been hereinbefore concluded to be holding no weight, therefore, this Court declines to grant the facility of bail to the bail petitioner. The striking reason for forming the afore inference is garnered, from even in Prateek Shukla's case (supra), the Hon'ble Apex Court, despite making its order on 8th March, 2021, and, obviously when its rendition occurred, during the ongoing pandemic, rather refrained from casting the afore parameter, as a good ground for bail. Contrarily when it has made stringent expostulation(s) against grating of bail in NDPS matters, wherein the relevant seizures comprise commercial quantities thereupon, this Court does not find any merit in the extant petition. 10. 11. Lastly, This Court, Had Through An Order Made, On 4.5.2021, Directed The Learned Additional Advocate General To Purvey This Court, Hence Statistics With Respect To The Pendency In District Kullu, Of Case(S) Involving Commercial Quantities Of Narcotic Drugs And Psychotropic Substances. The Learned Additional Advocate General Inconformity Thereto, Has Purveyed Scribed Instructions To This Court. A Perusal Of The Relevant Instructions, Discloses That 210 Trials, Embodying Therein Charges Against The Accused Concerned, For Theirs Possessing Commercial Quantity(Ies) Of Narcotic Drugs And Psychotropic Substances, Are Pending, Before The Learned Special Judge Concerned At Kullu. Resultantly, Given The Afore Escalated Level Of Pendency Of Cases Involving Commercial Quantities Of Narcotic Drugs And Psychotropic Substances, Before The Learned Special Judge, Kullu, Does Become, An Added And Weighty Circumstance, For This Court To Decline The Facility Of Bail To The Applicant, (A) Lest, Any Order Made, By This Court That Merely On Account Of The Ongoing Pandemic, Hence The Bail Applicant Being Released On Bail, Would Lead To An Unwanted Catastrophic Circumstance, Of All The Accused Concerned, Merely On Account Of The Ongoing Pandemic Approaching Courts Of Law, For Grant Of Bail. 12. For the foregoing reasons, there is no merit in the extant petition, and, it is dismissed. No costs.