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2025 DIGILAW 566 (HP)

Rohit v. State of Himachal Pradesh

2025-04-01

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition to seek regular bail. It has been asserted that the petitioner was arrested vide FIR No. 128 of 2023, dated 15.11.2023, for the commission of offences punishable under Section 21 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act), Section 201 of the Indian Penal Code ( IPC ) and Section 14 of the Foreigners Act , registered at Police Station Parwanoo, District Solan, H.P. As per the prosecution, the police recovered 18.16 grams of heroin from a car bearing registration No. HP-93-5274 being driven by Rohit Chauhan. The petitioner was also travelling in the vehicle. The police arrested the petitioner and the driver. The police filed a charge sheet before the Court. The prosecution has cited 24 witnesses and has not examined even a single witness. Three FIRs have been registered against the petitioner, which are still pending in the Courts. The petitioner has roots in society. He would abide by the terms and conditions which the Court may impose. Hence the petition. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 15.11.2023. A vehicle bearing registration No. HP-93-5274 was stopped at 4.30 AM for checking. The petitioner was occupying the seat adjacent to the driver. The police recovered two pieces of aluminium foil, two currency notes of Rs.10/- and one white paper on the dashboard. The police found 18.16 grams of heroin inside the dashboard. The police seized the heroin and arrested the petitioner and the driver. The other co-accused was also arrested at the instance of the petitioner. FIR No. 313 of 2018, dated 21.10.2018 for the commission of offences punishable under Sections 21 and 22 of the ND&PS Act, FIR No. 148 of 2019, dated 14.7.2019 for the commission of offences punishable under Sections 21 and 29 of ND&PS Act and FIR No. 127 of 2022, dated 20.7.2022 for the commission of an offence punishable under Section 21 of ND&PS Act are pending in different Courts against the petitioner. The mobile phone of the petitioner was sent to FSL, and the supplementary charge sheet will be filed after the receipt of the report. The matter was listed on 17.2.2025 for the prosecution's evidence. 3. I have heard Mr. Anubhav Chopra, learned counsel for the petitioner and Mr. The mobile phone of the petitioner was sent to FSL, and the supplementary charge sheet will be filed after the receipt of the report. The matter was listed on 17.2.2025 for the prosecution's evidence. 3. I have heard Mr. Anubhav Chopra, learned counsel for the petitioner and Mr. Tarun Pathak, learned Deputy Advocate General, for the respondent-State. 4. Mr. Anubhav Chopra, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. He has been in custody for more than one year. No witness has been examined by the prosecution. The trial is not likely to conclude soon, and the right to a speedy trial of the petitioner is being violated. He relied upon the judgments in Pradeep Kumar v. State of H.P. 2025:HHC:5121 , Ayub Khan v. State of Rajasthan 2024 SCC OnLine SC 3763 , Rahul Thakur Vs. State of H.P. 2025:HHC:5710 and Vijay Kumar Vs. State of H.P. 2025:HHC:5122 in support of his submission. 5. Mr. Tarun Pathak, learned Deputy Advocate General for the respondent-State, submitted that three FIRs were registered against the petitioner. The petitioner would indulge in the commission of a similar offence in case of his release on bail. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P. , 2024 SCC OnLine SC 3068 , wherein it was observed as follows: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC which uses the expression “any condition … otherwise in the interest of justice”, has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms: — “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the application for bail and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. The Central Government has specified 05 grams of heroin as a small quantity and 250 grams as a commercial quantity. Therefore, the petitioner was found in possession of more than a small quantity and less than a commercial quantity of heroin, and the rigours of Section 37 of the ND&PS Act do not apply to the present case. 10. The petitioner was arrested on 15.11.2023. The status report shows that the matter is listed for recording the statements of prosecution witnesses at Serial Nos. 1 to 3. The petitioner has filed the photocopies of order sheets, which show that no witness was examined on the different dates fixed before the learned Trial Court. Since the certified copies were not filed, therefore authenticity of these documents is not established, but the status report shows that the matter was pending for the statements of prosecution witnesses at Serial Nos 1 to 3 and the charge sheet was filed before the Court on 9.1.2024. This means that no witness has been examined within one year of the filing of the charge sheet. This means that no witness has been examined within one year of the filing of the charge sheet. Therefore, there is a force in the submission of learned counsel for the petitioner that the right of speedy trial of the petitioner is being violated. 11. It was laid down in Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352 that the right to a speedy trial is a constitutional right of an accused. The right of bail is curtailed on the premise that the trial would be concluded expeditiously. It was observed: - “13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest - as observed in Vaman Narain Ghiya v. State of Rajasthan, [2008] 17 SCR 369: (2009) 2 SCC 281 ('the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal....'). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3 SCC 569 made observations to this effect. In Shaheen Welfare Association v. Union of India , [1996] 2 SCR 1123: (1996) 2 SCC 616 again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on: A conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under-trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efÏciently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods.” 12. The Court highlighted the effects of pre-trial detention and the importance of a speedy trial as under: “22. Before parting, it would be important to reflect that laws which impose stringent conditions for the grant of bail may be necessary in the public interest; yet, if trials are not concluded in time, the injustice wreaked on the individual is immeasurable. Jails are overcrowded, and their living conditions, more often than not, are appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as of 31 st December 2021, over 5,54,034 prisoners were lodged in jails against a 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/P SI-202 1/Executive ncrb Summary- 2021.pdf]. Of these 122,852 were convicts; the rest, 4,27,165 were undertrials. 23. 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, and autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes. ' 24. 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.] (also see Donald Clemmer's 'The Prison Community' published in 1940[Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, 'Donald Clemmer's Concept of Prisonisation', available at: https://www.tkp.edu.pl/ wpcontent/uploads/2020/12/Sobecki_sklad.pdf (accessed on 23rd March 2023).]). 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.” 13. It was held in Shaheen Welfare Association. v. Union of India, (1996) 2 SCC 616 : 1996 SCC (Cri) 366 that a person cannot be kept behind bars when there is no prospect of trial being concluded expeditiously. It was observed at page 621: “8. It is in this context that it has become necessary to grant some relief to those persons who have been deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and the nation needs to be safeguarded looking to the nature of the offences these undertrials have been charged with. But the ultimate justification for such deprivation of liberty pending trial can only be their being found guilty of the offences for which they have been charged. If such a finding is not likely to be arrived at within a reasonable time, some relief becomes necessary.” 14. Similarly, it was laid down by the Hon’ble Supreme Court in Jagjeet Singh v. Ashish Mishra , (2022) 9 SCC 321 : (2022) 3 SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be subjected to unending detention pending trial. It was observed at page 335: “40. Having held so, we cannot be oblivious to what has been urged on behalf of the respondent-accused that cancellation of bail by this Court is likely to be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed under Article 21 of the Constitution (see Union of India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713 , paras 15 and 17] ).” 15. It was laid down by the Hon’ble Supreme Court recently in Javed Gulam Nabi Shaikh v. State of Maharashtra (2024) 9 SCC 813 : 2024 SCC OnLine SC 1693 that the right to speedy trial of the offenders facing criminal charges is an important facet of Article 21 of the Constitution of India and inordinate delay in the conclusion of the trial entitles the accused to grant of bail, it was observed at page 817: - “ 10. Long back, in Hussainara Khatoon (1) v. State of Bihar [Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC 81: 1980 SCC (Cri) 23] , this Court had declared that the right to speedy trial of offenders facing criminal charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court”. Remarking that a valid procedure under Article 21 is one which contains a procedure that is “reasonable, fair and just”, it was held that : (SCC p. 89, para 5) “5. … Now obviously procedure prescribed by law for depriving a person of liberty cannot be “reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that a speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. There can, therefore, be no doubt that a speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied a speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long- delayed trial in violation of his fundamental right under Article 21.” 11. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya v. State of Bihar [Kadra Pahadiya v. State of Bihar, (1981) 3 SCC 671 : 1981 SCC (Cri) 791] and Abdul Rehman Antulay v. R.S. Nayak [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93] . In the latter, the court re-emphasised the right to a speedy trial and further held that an accused, facing prolonged trial, has no option: ( Abdul Rehman Antulay case [Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93] , SCC p. 269, para 84) “84. … The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands a speedy trial and yet he is not given one, it may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to a speedy trial on the ground that he did not ask for or insist upon a speedy trial.” 16. It was further held that if the State or any prosecuting agency, including the Court concerned, has no wherewithal to provide the right of speedy trial to the accused, then the bail should not be opposed on the ground that the crime is serious. It was observed at page 820: 17. It was further held that if the State or any prosecuting agency, including the Court concerned, has no wherewithal to provide the right of speedy trial to the accused, then the bail should not be opposed on the ground that the crime is serious. It was observed at page 820: 17. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. 18. We may hasten to add that the petitioner is still an accused, not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be. 19. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed, thereby violating Article 21 of the Constitution. 17. In the present case, the fact that the prosecution has not examined even a single witness within one year shows that the trial is not likely to conclude soon. 18. It was submitted that the petitioner has criminal antecedents. It was laid down by the Hon’ble Supreme Court in Ayub Khan v. State of Rajasthan , 2024 SCC OnLine SC 3763 : 2024: INSC:994 that the criminal antecedents may not be a reason to deny bail to the accused in case of his long incarceration. It was observed: “10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents.” 19. In the present case, the petitioner has undergone incarceration for more than one year and four months. The trial has not yet commenced, and there is no likelihood of early conclusion of the trial. Keeping in view the quantity of heroin, further incarceration of the petitioner is not justified. 20. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: - (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever; (II) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments; (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO, the Police Station concerned and the Trial Court; (IV) The petitioner will surrender his passport, if any, to the Court; and (V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/ WhatsApp/ Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 21. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 22. The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent, District Solan, H.P. and the learned Trial Court by FASTER. 23. 21. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 22. The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent, District Solan, H.P. and the learned Trial Court by FASTER. 23. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.