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2022 DIGILAW 862 (HP)

Pardeep Kumar v. State of Himachal Pradesh

2022-12-22

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. Petitioner is an accused in case FIR No. 05/2020, dated 30.01.2020, registered under Sections 20 & 25 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station State, CID Bharari, Shimla, H.P. 2. Petitioner is facing trial for offences under Section 20 and 25 of ND&PS Act in pursuance to challan filed by respondent. The allegation against petitioner is that he was an occupant of a Car bearing No. HP65A - 7500, from which 1.340 Kgs of ‘Charas’ was recovered. 3. Previously, vide order dated 29.04.2022, passed in Cr.MP(M) No. 796 of 2022, a Co-ordinate Bench of this Court had allowed a temporary bail to the petitioner keeping in view the ailment of his mother. Petitioner had surrendered on expiry of the period of liberty allowed in his favour. 4. 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 for almost two years now and the trial has not concluded, rather, it is progressing at snails pace. 5. In its status report dated 05.12.2022, respondent has submitted that the prosecution has cited seventeen witnesses in support of its case. The statements of eight witnesses have already been recorded. Three of the remaining witnesses have now been summoned for 27.02.2023 for examination before learned Special Judge. 6. Learned Additional Advocate General has opposed the prayer of the petitioner, on the ground 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. 7. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report. 8. 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? 9. 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? 9. As is suggested by the contents of status report not even half of prosecution witnesses have been examined till date despite the fact that petitioner is in custody since 29.01.2020. 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. 10. Recently, in a number of cases, under- trials for offences involving commercial quantity of contraband under ND &PS Act have been allowed the liberty of bail by Hon’ble Supreme Court only on the ground that they have been incarcerated for prolonged durations. 11. 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.” 12. In Nitish Adhikary @ Bapan Vs. The State of West Bengal (Special Leave to Appeal (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.” 13. In Gopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. 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.” 13. 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 appellant, in our view the case for bail is made out.” 14. 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.” 15. 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.”. 16. In addition, different Co- ordinate Benches of this Court have also followed precedent to grant bail to the accused in ND&PS Act, on the ground of prolonged pre- trial incarceration. 16. In addition, different Co- ordinate Benches of this Court have also followed precedent 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 1.12.2022, passed in Cr.MP(M) No. 2271 of 2022 and order dated 04.11.2022, passed in Cr.MP(M) No. 2273 of 2022. 17. Reverting to the facts of the case, the petitioner is in custody since 29.01.2020 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. 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. 05/2020, dated 30.01.2020, registered under Sections 20 & 25 of ND&PS Act, at Police Station State, CID Bharari, Shimla, 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 and shall be deemed only for the purpose of disposal of this petition.