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Himachal Pradesh High Court · body

2023 DIGILAW 307 (HP)

Kamal Kant v. State of H. P.

2023-05-26

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has prayed for grant of bail in case FIR No. 24 of 2022 dated 9.2.2022, registered at Police Station, Baijnath, District Kangra, H.P., under Sections 20 & 25 of the Narcotic Drugs & Psychotropic Substances Act, (for short “the Act”). 2. The investigation in the case is complete and report under Section 173 Cr.P.C. has been filed before learned Special Judge. The trial is now stated to be listed before learned Special Judge on 13.6.2023 for consideration on charge. 3. It is alleged against the petitioner that on 9.2.2022, he was apprehended by the police on the road side at about 12.10 p.m. on suspicion. Petitioner had alighted from the Car bearing registration No. HP-34A- 9475 with a bag in his hand. Petitioner is alleged to have thrown the bag on the road on noticing the police. He was overpowered by the police officials. On search of the bag pack, 1Kg 516 grams of charas was recovered. On chemical analysis, the substance recovered from the bag pack belonging to petitioner has been opined to be the sample of charas. 4. Petitioner has prayed for grant of bail under Section 439 Cr.P.C. on the ground that his implication is false. It is submitted that there is serious discrepancy in the evidence collected by the investigating agency, which prima-facie is sufficient to hold the petitioner not guilty of offence. It is further submitted that the Investigating Officer allegedly had obtained certificate from the Judicial Magistrate, 1st Class, after resorting to proceedings under Section 52A of the Act. As per such certification, it cannot be made out that the samples drawn from the entire bulk were representative in nature. As per learned counsel for the petitioner, there is another glaring discrepancy that there is huge difference in the weight of sample drawn during proceedings under Section 52A of the Act and the sample reportedly received at SFSL, Junga. 5. Learned counsel for the petitioner also contended that though the petition filed on behalf of the petitioner is a successive bail application but the same is maintainable having been filed in changed circumstance. As per him, firstly the petitioner has become entitled for grant of bail as his trial has been delayed inordinately and secondly on in-depth analysis of the material relied upon by prosecution, the aforesaid discrepancies have been found. 6. As per him, firstly the petitioner has become entitled for grant of bail as his trial has been delayed inordinately and secondly on in-depth analysis of the material relied upon by prosecution, the aforesaid discrepancies have been found. 6. On the other hand, the prayer for bail has been opposed by learned Additional Advocate General on the ground that the petitioner is alleged of having committed a heinous offence. The contraband recovered from him is of commercial quantity and in case the charge is proved against him, it will entail severe punishment. 7. I have heard learned counsel for the parties and have also gone through the record carefully. 8. The earlier bail application of petitioner being Cr.MP(M) No. 1920 of 2022 was rejected by this Court on 6.9.2022. More than six months have elapsed thereafter. At the time of dismissal of earlier bail application of the petitioner, the investigating agency had already submitted the report under Section 173 Cr.P.C. and till date even the charges have not been framed against the petitioner. Petitioner was arrested on 9.2.2022. He is in custody for more than one year and three months. That being so, the present application can be considered as changed circumstance. 9. 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 country[National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/PSI- 2021/Executive_ncrb_Summary-2021.pdf]. 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. State, 1993 Cri LJ 3242 as “a radical transformation” whereby the prisoner: “loses his identity. He is known by a number. He loses personal possessions. 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. State, 1993 Cri LJ 3242 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”[ Working Papers - Group on Prisons &Borstals - 1966 U.K. published in 194023)] (also see Donald Clemmer’s ‘The Prison Community’ . 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.” 10. Even this Court repeatedly has held that the rigors of Section 37 of the Act cannot be said to have same efficacy in perpetuity. The right of accused to have speedy trial, as guaranteed under Article 21 of the Constitution of India, cannot be made passive as against the rigors of Section 37 of the Act. Inordinate delay caused in the trial that too where the delay is not attributable to the accused, is a relevant factor to be considered in plea for bail. 11. On 8.5.2023, the respondent-State was directed to file a certificate, issued by the SHO of concerned Police Station, regarding weight of sample(s) received from SFSL, Junga after weighing the same on an electronic scale. Such direction was issued keeping in view the discrepancy in weight of the sample drawn by investigating agency in presence of Judicial Magistrate, 1st Class and weight of sample received in SFSL, Junga. Such direction was issued keeping in view the discrepancy in weight of the sample drawn by investigating agency in presence of Judicial Magistrate, 1st Class and weight of sample received in SFSL, Junga. In response, respondent has placed on record fresh status report with a communication issued by Assistant Director, NDPS Division, SFSL, Junga and it has been affirmed that the total weight of parcel received in the Laboratory was 42.626 grams. After deducting the weight of the parcel cloth and polythene wrappers, the actual weight of the sample was found to be 37.510 grams. It has been sought to be clarified that the discrepancy might be on account of non-calibration of weighing scales. 12. Thus, it is confirmed that though the sample weighing 26 grams was drawn, it was found to be 37.510 grams in SFSL, Junga. The discrepancy cannot be ignored as insignificant. The character of sample being truly representative is also subject to proof. 13. In order to bring the case of petitioner in excepted clause of Section 37 of the Act, this Court has to have reasons to believe that petitioner is not guilty of the offence. Such reasons can only be inferred from the material available on record. Circumstances creating doubt on the prosecution story can be the source of reason for entertaining such belief. In the given facts of the case, serious doubt is created on the prosecution story and this gives reason to this Court to prima-facie believe that the petitioner is not guilty of the offence. Though, the petitioner is still to be charged and tried for the allegations leveled against him, yet the petitioner is entitled to the benefit of above noted incongruity which renders the allegations against the petitioner suspicious. 14. No criminal history has been attributed to the petitioner and thus, it also cannot be said that if released on bail, petitioner will indulge in similar activities during such bail. 15. Petitioner is permanent resident of village Ujhli Bedhar, P.O. Bahrai, Tehsil and District Kullu, H.P. There is no likelihood of his absconding or fleeing from the course of justice. In order to secure the fair and speedy trial, petitioner can be put to appropriate terms. 16. 15. Petitioner is permanent resident of village Ujhli Bedhar, P.O. Bahrai, Tehsil and District Kullu, H.P. There is no likelihood of his absconding or fleeing from the course of justice. In order to secure the fair and speedy trial, petitioner can be put to appropriate terms. 16. Keeping in view the peculiar facts and circumstances of the case, petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 24 of 2022 dated 9.2.2022, registered at Police Station, Baijnath, District Kangra, H.P., under Sections 20 & 25 of the Narcotic Drugs & Psychotropic Substances Act, on his furnishing personal bond in the sum of Rs. 1,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court. This order shall be subject to following conditions: - i) That the petitioner shall appear before learned trial Court on each and every date and shall not delay the trial. ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; iii) That breach of any of the bail condition by the petitioner shall entail cancellation of the bail. iv) That the petitioner shall not leave India without prior permission of the Court. 17. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.