Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 581 (UTT)

Sunder Singh v. State of Uttarakhand

2023-10-11

RAKESH THAPLIYAL

body2023
JUDGMENT : This is the second Bail Application of the present applicant for seeking bail in relation to FIR No. 0071 of 2020 for the offences cognizable under Sections 8/20/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), P.S. Pantnagar, District Udham Singh Nagar. 2. The first Bail Application bearing Bail Application No. 1808 of 2020 was dismissed as withdrawn on 29.03.2022. 3. As per the prosecution, on 21.03.2020, the complainant along with the team of other police personnel, received an information from a secret police informer that three or four persons were carrying illicit contraband material (Charas) in a red-golden Eicher Canter (truck) bearing Registration No. U.K.-04CB-5197. On this information, the police officials along with the informer, proceeded to the spot, and while reaching, informer identified the vehicle, and the police personnel apprehended the vehicle on the spot by using force. The police personnel, thereafter, found that there were four persons inside the vehicle, namely Sangram Singh @ Santosh, Sunder Singh (the present applicant), Vishal Kakkar and Nandan Singh Bisht, who confessed that they are possessing of the illicit contraband material (Charas) of about 31 Kgs, which they have brought from Bageshwar. It is the case of the prosecution that 5 kgs contraband (Charas) was recovered from the possession of the present applicant-Sunder Singh in a bag and the rest 25-26 Kgs contraband material was hidden in a cabin beside the diesel tank. Thereafter, the Circle Officer, Rudrapur reached the spot. The person sitting at the driver’s seat was identified as Sangram Singh @ Santosh and the person sitting beside him was identified as Sunder Singh (present applicant). The third person was identified as Vishal Kakkar and the fourth person was identified as Nandan Singh Bisht. When Sunder Singh was asked to open his bag, 5.29 kgs (by electronic weight) of Charas was recovered therefrom. The rest 31 wrappers containing 25.71 Kgs of contraband material (Charas) was recovered by the police party, which was hidden in a cabin. 4. It is the case of the prosecution that all the four persons confessed that they used to supply Charas from the hills to Delhi and used to share its profit. They also confessed that they had brought this illicit contraband material (Charas) from a person named Narendra Singh-a resident of Bageshwar. 4. It is the case of the prosecution that all the four persons confessed that they used to supply Charas from the hills to Delhi and used to share its profit. They also confessed that they had brought this illicit contraband material (Charas) from a person named Narendra Singh-a resident of Bageshwar. It is also the case of the prosecution that videography was also done and the recovery was sealed, stamped and sent for analysis. It is further case of the prosecution that on searching, no independent witness was available. Thereafter, a Recovery Memo was written at the spot, and on the basis of the Recovery Memo, an FIR was registered at Police Station Pantnagar. All the aforesaid four persons, namely Sangram Singh @ Santosh, Sunder Singh (present applicant), Vishal Kakkar and Nandan Singh Bisht were arrested at the spot on 21.03.2020. 5. After lodging the FIR, Charge-sheet No. 94 of 2020 was filed on 30.06.2020. After more than two years, the charges were framed against the accused persons, including the present applicant on 02.07.2022. 6. Co-accused Vishal Kakkar was enlarged on bail by this Court by order dated 09.11.2022. This co-accused Vishal Kakkar was granted bail on the ground of parity, since one other co-accused Nandan Singh Bisht was already enlarged on bail. Nandan Singh Bisht was enlarged on bail on the ground that no contraband article was recovered from him, and similarly, no contraband article was recovered from the possession of Vishal Kakkar, and both of them were just sitting with Sunder Singh, who was the owner of the canter. 7. After framing of charges, a date was fixed before the trial Court on 03.08.2022, however, on that day, no witness was examined and, thereafter, the next dates were 03.09.2022, 24.09.2022, 29.10.2022, 01.11.2022, 18.11.2022, 02.12.2022, 08.12.2022, but on these dates, no witness was examined. Again 16.01.2023 was fixed, but on that day also, no witness was examined. This is first time when on 07.02.2023 only one witness Inspector M.P. Singh (PW1) was partially examined and on 08.05.2023, the examination of this witness was completed. 8. Counsel for the applicant submits that the applicant is in jail since 21.03.2020 and up till date, only three witnesses out of total fourteen witnesses have been examined, and certainly, the trial cannot be expedited during short span of time. He further submits that the applicant has no criminal history. 9. Mr. 8. Counsel for the applicant submits that the applicant is in jail since 21.03.2020 and up till date, only three witnesses out of total fourteen witnesses have been examined, and certainly, the trial cannot be expedited during short span of time. He further submits that the applicant has no criminal history. 9. Mr. Saurabh Pandey, learned Brief Holder for the State, on instructions about the stage of trial, submits that as on today, out of total fourteen witnesses, only three witnesses have been examined. 10. Though in Paragraph-25 of the counter-affidavit, it is stated that the applicant has no criminal history in District-Udham Singh Nagar, but during the course of arguments, Mr. Saurabh Pandey, learned Brief Holder, informed this Court, on instructions, that this applicant has no criminal history in the entire State. 11. The Investigating Officer, by way of a counter-affidavit enclosed the statement and cross-examination of PW1, on perusal of which, it reveals that PW1 was examined partially on 07.02.2023 and, thereafter, on 08.05.2023. The counter-affidavit of this Investigating Officer was filed on 3rd July, 2023, and admittedly, on the day when this counter-affidavit was filed, only one witness was examined i.e. PW1. 12. Learned State counsel seriously opposed the bail application by saying that by virtue of Section 37 of the Act, since the alleged recovered contraband is commercial quantity, therefore, the applicant is not entitled for bail. 13. At this juncture, it is necessary to reproduce Section 37 of the NDPS Act. The same reads as under:- “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 or 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. 14. Section 37 of the NDPS Act is a very rigorous provision. As per Section 37 of the NDPS Act, the conditions which the Court has to examine 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. 15. In response to this, learned counsel for the applicant submits that no doubt, as per Section 37 of the Act, bail in such cases may not be granted, unless the Court is satisfied 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. But, denial of bail does not give unfettered liberty to the prosecution to keep a person in custody without conducting a trial. 16. Learned counsel for the applicant further submits that the applicant, who has already spent in custody more than three years, is entitled for bail, particularly when he has no criminal antecedents. In respect of the period of incarceration, which the applicant has suffered for more than three years, counsel for the applicant placed reliance on the judgment rendered by the Hon’ble Supreme Court in the case of Mohd Muslim @Hussain v State(NCT of Delhi) 2023 SCC OnLine SC 352. Another judgment rendered by the Hon’ble Supreme Court in the case of Rabi Prakash vs. The State of Odisha 2023 SCC OnLine SC 1109 is also placed reliance upon by Mr. Sammal, wherein in Paragraph 4, the Hon’ble Supreme Court observed as follows:- “As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 17. Learned counsel for the applicant also placed reliance upon a judgment rendered by the Hon’ble Supreme Court in the case of Dheeraj Kumar Shukla Versus State of Uttar Pradesh, (2023) SCC OnLine SC 918, wherein, the Hon’ble Supreme Court, while granting bail to the accused from whom 92 kgs Ganja was recovered, observed as under:- “It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.” 18. By placing reliance on the aforesaid judgment, learned counsel for the applicant submits that in the present case, out of total fourteen witnesses, only three witnesses have been examined; the applicant is in jail since 21.03.2020; more than three years have passed. Therefore, the condition, as stipulated under Section 37 of the Act, can be dispensed with, at this stage. 19. Having considered the submissions of the learned counsel for the applicant as well as Mr. Saurabh Pandey, Brief Holder for the State and in view of the observation made in the judgment, as relied upon by the learned counsel for the applicant, that the prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 32(1(b)(ii) of the NDPS Act, there is no reason to keep the applicant behind the bars for an indefinite period. Further after taking into consideration the fact that the applicant has no criminal history, and he is in jail since for last more than three years, and only three witnesses out of total fourteen witnesses have been examined, the conditions, as stipulated under Section 37 of the Act, can be dispensed with at this stage. 20. Therefore, without expressing any opinion on the merits of the case, this Court is of the view that the applicant deserves for bail. 21. The Second Bail Application is allowed. 22. Applicant-Sunder Singh is ordered to be released on bail subject to his furnishing a personal bond and two reliable sureties, each in the like amount, to the satisfaction of the Court concerned with the following conditions:- (i) Applicant shall attend the Trial Court regularly and he shall not seek any unnecessary adjournment. (ii) Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case. (iii) Applicant shall not leave the country without previous permission of the Trial Court. (iv) In case the applicant is found to be involved in future in any other similar case, or misuses or violates any of the conditions imposed on him while granting bail, the prosecution is free to move an application for cancellation of bail.