Himachal Pradesh High Court
Date Of Decision: 18.11.2024 vs State Of Himachal Pradesh on 18 November, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:11699
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.2293 of 2024
Date of Decision: 18.11.2024
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Shashi Ram Pun ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner: Mr. Prajjwal Gupta, Advocate.
For the Respondent: Mr. Vishal Panwar and Mr.
B.C.Verma, Additional Advocate
Generals, with Mr. Ravi Chauhan,
Deputy Advocate General.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely, Shashi Ram Pun, who is
behind the bars since 20.10.2023, has approached this Court in
the instant proceedings filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita, for grant of regular bail in case FIR
No. 225 of 2023, dated 20.10.2023, under Section 18 of the NDPS
Act, registered at police Station, Sadar, District Solan, Himachal
Pradesh. Respondent-State has filed status report and ASI Om
Prakash has come present with the record. Record perused and
returned.
1
Whether reporters of the local papers may be allowed to see the judgment?
2 2024:HHC:11699
2. Close scrutiny of the status report/record reveals that
on 20.10.2023, police after having received secret information that
person, namely Shashi Ram Pun i.e. petitioner herein indulges in
illegal trade of narcotics, at 3.20 PM, apprehended him near
Panchayat Office, Community Centre, Seri and allegedly recovered
865 grams opium from the bag(pithu) being carried by him at the
relevant time. Since, no plausible explanation ever came to be
rendered on record qua possession of aforesaid commercial
quantity of contraband, police after having completed necessary
codal formalities lodged the FIR, as detailed hereinabove, and
since then bail petitioner is behind the bars. Since investigation in
the case is complete and challan stands filed in the competent
court of law, prayer has been made on behalf of the petitioner for
grant of regular bail. Primarily, bail has been sought on the ground
of inordinate delay in conclusion of the trial. Learned counsel for
the petitioner submits that more than one year has passed after
lodging of the FIR, but till date, prosecution evidence has not
commenced and there is no likelihood of conclusion of trial in near
future and in case, petitioner is not ordered to be enlarged on bail
during the pendency of the trial, it would not only amount to pre-
trial conviction, but would also violate Article 21 of the Constitution
of India.
3 2024:HHC:11699
3. While fairly admitting factum with regard to filing of the
challan in the competent Court of law, Mr. Ravi Chauhan, learned
Deputy Advocate General, states that though nothing remains to
be recovered from the bail petitioner, but keeping in view the
gravity of offence alleged to have been committed by him, he does
not deserve any leniency. He states that court below has already
fixed the date for recording the statements of the prosecution
witnesses and as such, it cannot be said that trial has not
commenced, rather same is likely to be concluded within shortest
possible time for the reason that only 16 prosecution witnesses are
proposed to be examined by the prosecution. While making this
Court peruse status report, learned Deputy Advocate General
states that in past one case under NDPS Act already stands
registered against the petitioner, which fact itself suggests that the
bail petitioner is a drug peddler and in the event of his being
enlarged on bail, he may not only flee from justice, but may again
indulge in these activities.
4. Having heard learned counsel for the parties and
perused material available on record, this Court finds that on the
date of alleged incident, intermediate quantity of contraband came
to be recovered from the conscious possession of the bail
petitioner in the presence of independent witnesses and as such, it
cannot be said that petitioner has been falsely implicated.
4 2024:HHC:11699
However, having taken note of the fact that bail petitioner is behind
the bars for more than one year and till date prosecution evidence
has not commenced, prayer made on behalf of the petitioner for
grant of bail deserves to be considered.
5. Moreover, rigours of Section 37 of the Act are not
attracted in the present case for the reason that intermediate
quantity of contraband allegedly came to be recovered from the
conscious possession of the bail petitioner. No doubt, in past one
case stands registered against the petitioner, but such fact may
not dissuade this Court from considering the prayer made in the
instant petition for grant of bail, especially when guilt, if any, of
petitioner in previous case is yet to be proved by the prosecution
by leading cogent and convincing evidence. Moreover, there is
nothing on record to suggest that after registration of the FIR,
which is subject matter of the present case, steps, if any, ever
came to be taken at the behest of prosecution to file application for
cancellation of bail in previous FIR. Omission, if any, on the part of
the prosecution to apply for cancellation of bail in previous case on
account of registration of new FIR, itself suggest that there is no
cogent and convincing evidence available with the prosecution
suggestive of the fact that in the event of petitioner’s being
enlarged on bail, he may flee from justice.
5 2024:HHC:11699
6. Leaving everything aside, this Court cannot lose sight
of the fact that bail-petitioner is behind bars for more than one year
and till today, prosecution has not been able to examine even a
single witness, out of 16 prosecution witnesses. Though, status
report reveals that for recording the statements of prosecution
witnesses, Court below has fixed the matter for 06.12.2024, but
this Court having taken note of the fact that it took more than one
year for Court below to frame charge, has reason to believe and
presume that considerable time is likely to be consumed in the
conclusion of trial and in case, petitioner is left to incarcerate for
indefinite period during trial, that would amount to pretrial
conviction, which is otherwise not permissible in law.
7. By now, it is well settled that speedy trial is legal right
of the accused and one cannot be made to suffer indefinitely for
delay in trial and as such, this Court sees no reason to keep the
bail petitioner behind the bars for indefinite period during trial.
Delay in trial has been held to be in violation of the right
guaranteed under Article 21 of Constitution of India. Reliance is
placed on judgment passed by the Hon’ble Apex Court in case
titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC
731, relevant para whereof has been reproduced herein below:-
“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been
held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See:
Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India,
(1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have
been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See:
Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).”
6 2024:HHC:11699
8. Hon’ble Apex Court having taken note of inordinate
delay in conclusion of trial in similar facts ordered for enlargement
of accused on bail in Nitish Adhikary @ Bapan v. The State of
West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022
decided on 1.8.2022 and in Abdul Majeed Lone v. Union
Territory of Jammu and Kashmir, Special Leave to Appeal (Crl)
No. 3961 of 2022, decided on 1.8.2022, who were also framed
under Narcotic Drugs and Psychotropic Substances Act and were
behind the bars for approximately two years and there was no
likelihood of conclusion of trial in near future, subject to certain
conditions.
9. Placing reliance upon aforesaid judgments, a Co-
ordinate Bench of this Court in CrMP(M) No. 1328 of 2022 titled
Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022,
also ordered for enlargement of an accused, who was allegedly
apprehended carrying commercial quantity of Tramadol, on the
ground of delay in conclusion of trial.
10. Apart from above judgment, Co-ordinate Bench of this
Court while granting bail vide order dated 22.3.2021 in CrMP(M)
No. 35 of 2021 titled Ajay Singh v. State of Himachal Pradesh,
also placed reliance upon a judgment delivered by a three-Judge
Bench in Cr. Appeal No. 668 of 2020 titled Amrit Singh Moni v.
State of Himachal Pradesh, decided on 12.10.2020, wherein
7 2024:HHC:11699
petitioner was allegedly found in possession of 3285 grams of
charas from a vehicle, wherein four other persons were sitting.
11. Learned Counsel appearing for the petitioner, to
substantiate his plea for enlarging the petitioner on bail, has
referred order dated 12.10.20220 passed by a three judges Bench
of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled
Amrit Singh Moni v. State of Himachal Pradesh, whereby
petitioner therein, facing trial for recovery of 3.285 kilograms
charas from a vehicle, alongwith four other persons, was enlarged
on bail, for having been in detention for 2 years and 7 months, as
till then out of 14 witnesses, 7 witnesses were yet to be examined
and last witness was examined in February, 2020 and, thereafter,
there as no further progress in the trial.
12. Learned Additional Advocate General, referring to
judgment of a three Judges Bench of Supreme Court, passed on
19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal
contends that period of detention cannot be a ground for enlarging
the petitioner on bail.
13. The learned Counsel appearing for the petitioner
submits that in Mohit Aggarwal, huge commercial quantity of 20
kilograms of Tramadol, against minimum commercial quantity of
250 grams, was recovered, whereas, in the present case, the
recovered quantity is little more than the commercial quantity.
8 2024:HHC:11699
14. In similar circumstances, in CrMP(M) No. 1255 of
2022, titled Puran Chand v. State of Himachal Pradesh, decided
on 28.7.2022, another Co-ordinate Bench of this Court, having
taken note of inordinate delay in conclusion of trial, ordered
enlargement on bail of the person, who was apprehended with
1.996 kg of charas.
15. Recently, Hon’ble Apex Court in Javed Gulam Nabi
Shaikh Vs. State of Maharashtra and Another, Criminal Appeal
No.2787 of 2024, decided on 03.07.2024, adversely commented
upon the approach of trial Court as well as High Court while
considering the prayer for grant of bail. In the aforesaid judgment,
Hon’ble Supreme Court having taken note of the fact that appellant
in that case was in jail for last four years and Court till that date
was not able to frame charges, proceeded to enlarge accused on
bail in a case registered under the provisions of Unlawful Activities
(Prevention) Act, 1967. In no uncertain terms, Hon’ble Apex Court
in aforesaid judgment held that, however serious a crime may be,
an accused has right to speedy trial, as enshrined in Article 21 of
the Constitution of India. Relevant Paras of aforesaid judgment are
reproduced hereinbelow, which reads as under:
“7. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, we are inclined to
exercise our discretion in favour of the appellant herein keeping in
mind the following aspects:
(i) The appellant is in jail as an under-trial prisoner past four years;
9 2024:HHC:11699
(ii) Till this date, the trial court has not been able to even proceed to
frame charge; and
(iii) As pointed out by the counsel appearing for the State as well as
NIA, the prosecution intends to examine not less than eighty
witnesses.
8. Having regard to the aforesaid, we wonder by what period of
time, the trial will ultimately conclude. Howsoever serious a crime may
be, an accused has a right to speedy trial as enshrined under the
Constitution of India.
9. Over a period of time, the trial courts and the High Courts have
forgotten a very well settled principle of law that bail is not to be
withheld as a punishment.
10. In the aforesaid context, we may remind the trial courts and
the High Courts of what came to be observed by this Court in
Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court
reported in (1978) 1 SCC 240. We quote:
“What is often forgotten, and therefore warrants reminder, is
the object to keep a person in judicial custody pending trial or
disposal of an appeal. Lord Russel, C.J., said [R v. Rose,
(1898) 18 Cox] :
“I observe that in this case bail was refused for the
prisoner. It cannot be too strongly impressed on the,
magistracy of the country that bail is not to be withheld as
a punishment, but that the requirements as to bail are
merely to secure the attendance of the prisoner at trial.”
11. The same principle has been reiterated by this Court in
Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC
565 that the object of bail is to secure the attendance of the accused
at the trial, that the proper test to be applied in the solution of the
question whether bail should be granted or refused is whether it is
probable that the party will appear to take his trial and that it is
indisputable that bail is not to be withheld as a punishment.
12. Long back, in Hussainara Khatoon v. Home Secy., State of
Bihar reported in (1980) 1 SCC 81, 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:
10 2024:HHC:11699
“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
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 Article21.
The question which would, however, arise is as to what
would be the consequence if a person accused of an
offence is denied speedy trial and is sought to be deprived
of his liberty by imprisonment as a result of along delayed
trial in violation of his fundamental right under Article 21.”
13. The aforesaid observations have resonated, time and again, in
several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar
reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S.
Nayak reported in (1992) 1 SCC 225. In the latter the court re-
emphasized the right to speedy trial, and further held that an accused,
facing prolonged trial, has no option:
“The State or complainant prosecutes him. It is, thus, the
obligation of the State or the complainant, as the case
maybe, 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 speedy trial and yet he is not given
one,may be a relevant factor in his favour. But we cannot
disentitle an accused from complaining of infringement of his
right to speedy trial on the ground that he did not ask for or
insist upon a speedy trial.”
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported
in 2023INSC 311, this Court observed 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
11 2024:HHC:11699time, 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 31stDecember 2021, over 5,54,034
prisoners were lodged in jails against total capacity of
4,25,069 lakhs in the country. 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 KeralaHigh
Court in A Convict Prisoner v. State reported in 1993Cri 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”(also see
Donald Clemmer’s ‘The Prison Community’ published in
1940). 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.”
15. The requirement of law as being envisaged under Section 19
of the National Investigation Agency Act, 2008 (hereinafter being
referred to as “the 2008 Act”) mandates that the trial under the Act of
any offence by a Special Court shall be held on day-to-day basis on all
working days and have precedence over the trial of any other case
and Special Courts are to be designated for such an offence by the
12 2024:HHC:11699Central Government in consultation with the Chief Justice of the High
Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A.
Najeeb reported in (2021) 3 SCC 713] had an occasion to consider
the long incarceration and at the same time the effect of Section 43-
D(5) of the UAP Act and observed as under : (SCC p. 722, para 17)
“17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se does not
oust the ability of the constitutional courts to grant bail on
grounds of violation of Part III of the Constitution. Indeed,both
the restrictions under a statute as well as the powers
exercisable under constitutional jurisdiction can be well
harmonised. Whereas at commencement of proceedings,the
courts are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions will
melt down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial
part of the prescribed sentence. Such an approach would
safe-guard against the possibility of provisions like Section
43-D(5) of the UAPA being used as the sole metric for denial
of bail or for wholesale breach of constitutional right to
speedy trial.”
17. In the recent decision, Satender Kumar Antil v. Central
Bureau of Investigation reported in (2022) 10 SCC 51, prolonged
incarceration and inordinate delay engaged the attention of the court,
which considered the correct approach towards bail, with respect to
several enactments, including Section 37 NDPS Act. The court
expressed the opinion that Section 436A (which requires inter alia the
accused to be enlarged on bail if the trial is not concluded within
specified periods) of the Criminal Procedure Code, 1973would apply:
“We do not wish to deal with individual enactments as each
special Act has got an objective behind it, followed by the
rigour imposed. The general principle governing delay would
apply to these categories also. To make it clear, the provision
contained in Section 436-A of the Code would apply to the
Special Acts also in the absence of any specific provision.
For example, the rigour as provided under Section 37 of the
NDPS Act would not come in the way in such a case as we
13 2024:HHC:11699are dealing with the liberty of a person. We do feel that more
the rigour, the quicker the adjudication ought to be. After all,
in these types of cases number of witnesses would be very
less and there may not be any justification for prolonging the
trial. Perhaps there is a need to comply with the directions of
this Court to expedite the process and also a stricter
compliance of Section 309 of the Code.”
18. Criminals are not born out but made. The human potential in
everyone is good and so, never write off any criminal as beyond
redemption. This humanist fundamental is often missed when dealing
with delinquents,juvenile and adult. Indeed, every saint has a past and
every sinner a future. When a crime is committed, a variety of factors
is responsible for making the offender commit the crime. Those factors
may be social and economic, maybe, the result of value erosion or
parental neglect; may be, because of the stress of circumstances, or
the manifestation of temptations in a milieu of affluence contrasted
with indigence or other privations.
19. 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.”
16. Hon’ble Apex Court as well as this Court in catena of
cases have repeatedly held that one is deemed to be innocent till
the time guilt, if any, of his/her is not proved in accordance with
law. In the case at hand also, guilt, if any, of the accused is yet to
be proved in accordance with law, by leading cogent and
convincing material on record and as such, his incarceration for
indefinite period is clear cut violation of Fundamental Right granted
under Article 21 of the Constitution of India. Apprehension
expressed by the learned Deputy Advocate General that in the
14 2024:HHC:11699
event of petitioner’s being enlarged on bail, he may flee from
justice, can be best met by putting the bail petitioner to stringent
conditions as has been fairly stated by the learned counsel for the
petitioner.
17. Hon’ble Apex Court in Criminal Appeal No. 227/2018,
Dataram Singh vs. State of Uttar Pradesh & Anr decided on
6.2.2018 has held that freedom of an individual cannot be curtailed
for indefinite period, especially when his/her guilt is yet to be
proved. It has been further held by the Hon’ble Apex Court in the
aforesaid judgment that a person is believed to be innocent until
found guilty.
18. Hon’ble Apex Court in Sanjay Chandra versus
Central Bureau of Investigation (2012)1 Supreme Court Cases
49 has held that gravity alone cannot be a decisive ground to deny
bail, rather competing factors are required to be balanced by the
court while exercising its discretion. It has been repeatedly held by
the Hon’ble Apex Court that object of bail is to secure the
appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor
preventative.
19. In Manoranjana Sinh alias Gupta versus CBI,
(2017) 5 SCC 218, Hon’ble Apex Court has held that the object of
the bail is to secure the attendance of the accused in the trial and
15 2024:HHC:11699
the proper test to be applied in the solution of the question whether
bail should be granted or refused is whether it is probable that the
party will appear to take his trial. Otherwise also, normal rule is of
bail and not jail. Apart from above, Court has to keep in mind
nature of accusations, nature of evidence in support thereof,
severity of the punishment, which conviction will entail, character of
the accused, circumstances which are peculiar to the accused
involved in that crime.
20. The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid down
various principles to be kept in mind, while deciding petition for bail
viz. prima facie case, nature and gravity of accusation, punishment
involved, apprehension of repetition of offence and witnesses
being influenced.
21. In view of the aforesaid discussion as well as law laid
down by the Hon’ble Apex Court, petitioner has carved out a case
for grant of bail, accordingly, the petition is allowed and the
petitioner is ordered to be enlarged on bail in aforesaid FIR,
subject to his furnishing personal bond in the sum of Rs.2,00,000/-
with two local sureties in the like amount to the satisfaction of
concerned Chief Judicial Magistrate/trial Court, with following
conditions:
(a) He shall make himself available for the purpose of
interrogation, if so required and regularly attend the trial Court
16 2024:HHC:11699on each and every date of hearing and if prevented by any
reason to do so, seek exemption from appearance by filing
appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper
the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any
person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to the Court or the Police
Officer; and
(d) He shall not leave the territory of India without the prior
permission of the Court.
22. It is clarified that if the petitioner misuses the liberty or
violates any of the conditions imposed upon him, the investigating
agency shall be free to move this Court for cancellation of the bail.
23. Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and shall
remain confined to the disposal of this application alone. The
petition stands accordingly disposed of.
24. The petitioner is permitted to produce copy of the
order downloaded from the High Court Website and the trial court
shall not insist for certified copy of the order, however, it may verify
the order from the High Court website or otherwise.
(Sandeep Sharma)
Judge
November 18,2024
(shankar)