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2023 DIGILAW 251 (HP)

Manoj Kumar v. State of Himachal Pradesh

2023-05-09

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Petitioner is an accused in case FIR No. 190 of 2019, dated 12.11.2019, registered under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Chowari, District Chamba H.P. Petitioner is in custody since 21.11.2019. 2. The challan is stated to have been filed and the trial is pending before Special Judge, Chamba. The police official Mr. Rakesh Kumar is present in the Court today alongwith police record. He has informed that there are thirty-one cited prosecution witnesses, out of which only nine witnesses have been examined till date. 3. Petitioner has now prayed for grant of bail on the sole ground that his constitutional right to speedy trial has been violated. It is further contended that petitioner has nowhere been at fault in causing the delay in conclusion of trial. As per petitioner, the final conclusion of trial is going to take considerable time and his liberty cannot be curtailed for indeterminate period. 4. Per-contra, learned Additional Advocate General has opposed the prayer. It is submitted that petitioner is involved in a serious and heinous crime involving commercial quantity of charas. He is not entitled to be released on bail keeping in view the rigors of Section 37 of ND&PS, Act. It is further submitted that the petitioner on earlier occasion also approached this Court by way of Cr.MP No. 214 of 2023, but the same was disallowed with the observation that learned Trial Court would conclude the trial expeditiously. 5. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report. 6. Learned counsel for the petitioner has placed on record a copy of order dated 17.02.2023, passed by this Court in Cr.MP No. 214 of 2023 as Annexure P-1. Its perusal reveals that the facts were not correctly represented and hence it was recorded that out of twenty-two witnesses, twelve had been examined. It was in this background that the prayer of the petitioner for bail was dis-allowed at that stage with an observation that learned Trial Court would conclude the trial expeditiously. However, now it is revealed that prosecution has cited thirty-one witnesses and only nine of them have been examined till date. 7. It was in this background that the prayer of the petitioner for bail was dis-allowed at that stage with an observation that learned Trial Court would conclude the trial expeditiously. However, now it is revealed that prosecution has cited thirty-one witnesses and only nine of them have been examined till date. 7. 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 provision 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. As is suggested by the contents of status report, recording of prosecution evidence is still in progress despite the fact that petitioner is in custody since 21.11.2019. 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 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. 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 (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. 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, 1098. The application seeking relief of bail having been rejected, the instant appeal has been fled. 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.” 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 submission 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. 15. 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 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. Recently in Criminal Appeal No. 943 of 2023 titled as Mohd Muslim @ Hussain Vs. State (NCT of Delhi ), Hon’ble Supreme Court, vide its judgment dated 28.03.2023, has held as under:- “21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. 22. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court in A Convict Prisoner v. State21 as “a radical transformation” whereby the prisoner: “loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.” 23. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”22 (also see Donald Clemmer’s ‘The Prison Community’ 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/PSI- 2021/Executive_ncrb_Summary-2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.” 17. Reverting to the facts of the case, the petitioner is in custody since 21.11.2019 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that 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. 190 of 2019, dated 12.11.2019, registered under Sections 20 and 29 of ND&PS, Act, at Police Station Chowari, District Chamba 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.