Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 10 January, 2025
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 2786 of 2024
Reserved on: 10.01. 2025
Announced on:10.01.2025
____________________________________________________________
Jitender …….Petitioner
Versus
State of Himachal Pradesh ……Respondent
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes.
For the petitioner: Mr. Karun Negi, Advocate.
For the respondent: Mr. Vishav Deep Sharma, Addl. A.G.
Ranjan Sharma, Judge
Bail petitioner, Jitender [being in custody
14.09.2023] has come up before this Court seeking
regular bail under Section 439 of the Code of Criminal
Procedure [hereinafter referred to as Cr.P.C] originating
from F.I.R. No. 148 of 2023 dated 14.09.2023, under
Section 15 and 29 of Narcotic Drugs and Psychotropic
Substances Act (referred to as the NDPS Act) registered
with Police Station Majra, District Sirmour, (H.P.)
1
Whether reporters of Local Papers may be allowed to see the judgment?
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FACTUAL MATRIX
2. Case set up by Mr. Karun Negi, Learned
Counsel for the bail petitioner [Jitender] is that on
14.09.2023 police party received an information at about
10.20 a.m that a White Creta Hundai Car bearing
registration No. HR14P-9300 was carrying contraband.
On receipt of information, Nakka was laid at about 11.15
a.m at NH-07 near HPCL Petrol Pump when the car
HR14P-9300 being driven by accused Jitender was
intercepted by the patrolling party and Poppy husk/Chura
Post weighing 54.402 Kg was recovered from gunny bags
in the car. Consequently, other codal formalities were
completed and the bail petitioner Jitender [driver]
alongwith other co-accused, namely, Vishal Sharma,
Shambhu Lal and Sattu Joggi were arrested by police on
14.09.2023.
2(i) In above backdrop, the case of the bail
petitioner, Jitender, is that there is no iota of evidence
against the petitioner. It is further averred that the bail
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petitioner has not committed any offence and he is
not connected with the same and is not guilty in any
manner. It is further averred that no contraband was
recovered from the exclusive and conscious possession
of the bail petitioner. It is further averred that the
petitioner is facing incarceration since 14.09.2023 i.e.
for last more than one year and four months now.
2(ii). It is further averred that the petitioner joined
the Investigation and no recovery is pending from the bail
petitioner. It is averred that pursuant to Investigation the
Challan-Final Police Report has been presented before
jurisdictional Court. Petitioner has furnished the
undertaking that in case he is released on bail, the
bail petitioner shall join the trial and shall not cause any
inducement, threat or promise to any person acquainted
with the facts of the case and shall abide by such
terms and conditions as may be imposed by this Court.
It is averred that the bail petitioner had filed a bail
application before Learned Special Judge-II, Sirmaur
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District at Nahan in CIS Case No. 3 of 2024, which
was dismissed by Learned Special Judge on 08.04.2024
[Annexure P-3]. It is further averred that after dismissal
of the bail application before Learned Special Judge bail
petitioner [Jitender], had filed an application for regular
bail i.e. Cr.MP(M) No. 396 of 2024 before this Court, which
was withdrawn on 06.03.2024 [Annexure P-2]. After
withdrawal of the petition, the bail petitioner filed the
instant bail application. It is averred that bail petitioner
is 31 years of age and he undertakes not to flee away from
justice.
With these averments, the claim for bail has
been preferred before this Court.
STAND OF STATE AUTHORITIES IN STATUS
REPORT:
3. Pursuance to issuance of notice, the State
Authorities have filed the Status Report dated 06.01.2025
on Instructions of SHO Police Station, Sirmaur [H.P].
3(i). Perusal of Status Report indicates the sequence
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of events that four accused, namely, Jitender [driver] [bail
petitioner], Vishal Sharma, Shambhu Lal and Sattu
Joggi were travelling in White Creta Hundai Car bearing
registration No. HR14P-9300, when on 14.09.2023 it was
intercepted by police patrolling party on information
received. The car in question was searched and
contraband weighing a total of 54.402 kg. Poppy
Straw/Chura Post was recovered from dicky of aforesaid
vehicle, which was in three gunny bags.
3(ii). Status Report indicates that after completing
formalities all four accused were arrested, out of which
three accused, namely, Jitender [bail petitioner], Vishal
Sharma, Shambhu Lal were produced before the
Additional Chief Judicial Magistrate, Nahan for remand on
15.09.2023 whereas, Sattu Jogi, who claimed to be a
minor was sent to Juvenile Justice (Home) at Nahan.
Status Report further indicates that investigation was
undertaken and even the SFSL Report dated 12.10.2023
has affirmed the contraband to be Poppy Straw.
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3(iii). Status Report further indicates that the co-
accused, Sattu Jogi, who claimed to be a minor earlier
was made to undergo Ossification Test, wherein, he came
to be above 18 years of age but, at that time, he was
released by PMJJB, Nahan on 18.10.2023.
3(v). Status Report further indicates that the
investigation has been completed and the Challan-Final
Police Report dated 23.01.2024 has been presented before
Learned Special Judge, Nahan. It is averred that the
prosecution intends to examine 29 PW’s out of which
7 PW’s have been examined by Learned Trial Court and
trial has now been fixed for 28.01.2025 and thereafter.
In this background, Learned State Counsel
has prayed for dismissal of the bail application.
4. Heard, Mr. Karun Negi, Learned Counsel for
bail-petitioner and Mr. Vishav Deep Sharma, Learned
Additional Advocate General for the Respondent-State.
STATUTORY PROVISIONS:
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5. Before dealing with the bail petition, it is
necessary to take note of the provisions of Sections 15
and 29 of the NDPS Act, which read as under:-
15. Punishment for contravention in relation to
poppy straw.–
Whoever, in contravention of any provisions of
this Act or any rule or order made or condition
of a licence granted thereunder, produces,
possesses, transports, imports inter-State,
exports inter-State, sells, purchases, uses or
omits to warehouse poppy straw or removes
or does any act in respect of warehoused
poppy straw shall be punishable,–
(a) where the contravention involves small
quantity, with rigorous imprisonment for a term
which may extend to one year, or with fine
which may extend to ten thousand rupees or
with both;
(b) where the contravention involves
quantity lesser than commercial quantity but
greater than small quantity, with rigorous
imprisonment for a term which may extend to
ten years and with fine which may extend to
one lakh rupees;
(c) where the contravention involves
commercial quantity, with rigorous
imprisonment for a term which shall not be
less than ten years but which may extend
to twenty years and shall also be liable to
fine which shall not be less than one lakh
rupees but which may extend to two lakh
rupees:
Provided that the court may, for reasons to be
recorded in the judgment, impose a fine
exceeding two lakh rupees.
29. Punishment for abetment and criminal
conspiracy.-
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(1) Whoever abets or is a party to a criminal
conspiracy to commit an offence punishable under
this Chapter, shall, whether such offence be or be
not committed in consequence of such abetment
or in pursuance of such criminal conspiracy, and
notwithstanding anything contained in section 116 of
the Indian Penal Code (45 of 1860), be punishable
with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal
conspiracy to commit, an offence, within the meaning
of this section, who, in India abets or is a party to the
criminal conspiracy to the commission of any act in a
place without and beyond India which-
(a) would constitute an offence if committed
within India; or
(b) under the laws of such place, is an
offence relating to narcotic drugs or psychotropic
substances having all the legal conditions
required to constitute it such an offence the same
as or analogous to the legal conditions required
to constitute it an offence punishable under this
Chapter, if committed within India.”
MANDATE OF LAW:
6. Notably, the claim of the suspect-accused
for post arrest or regular bail is to be examined/
tested within the parameters prescribed of the
Code of Criminal Procedure and also the broad
para-meters mandated by the Hon’ble Supreme Court for
regulating grant of bail in Gurbaksh Singh Sibbia
versus State of Punjab (1980) 2 SCC 565, Ram Govind
Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ;
Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7
-9-
SCC 528; Prasanta Kumar Sarkar versus Ashish
Chatterjee, (2010) 14 SCC 496; reiterated in
P. Chidambaram versus Directorate of Enforcement,
(2019) 9 SCC 24, mandating that the bail {anticipatory
or regular} is to be granted where the case is frivolous
or groundless and no prima facie or reasonable grounds
exists which lead to believe or point out towards
accusation; and these parameters for regular bail
have been reiterated in Sushila Aggarwal versus State-
NCT Delhi, (2020) 5 SCC 01.
6(i). While dealing with the case for grant of
regular bail, under Section 483 BNSS, the three judges
bench of Hon’ble Supreme Court, after reiterating the
broad parameters, has held in Deepak Yadav versus
State of Uttar Pradesh, (2022) 8 SCC 559, in
Para-25 that the nature of the crime has a huge relevancy,
while considering claim for bail.
6(ii). In the case of Ansar Ahmad versus State
of Uttar Pradesh, 2023 SCC Online SC 974, the
– 10 –
Hon’ble Supreme Court had expanded the horizon of
the broad parameters, which are to be primarily taken
into account, for considering the claim for regular
bail or anticipatory bail as under:
“11. Mr. R. Basant, the learned Senior Counsel
appearing for one of the private respondents
that the Court while granting bail is not
required to give detailed reasons touching the
merits or de-merits of the prosecution case as
any such observation made by the Court in
a bail matter can unwittingly cause prejudice
to the prosecution or the accused at a later
stage. The settled proposition of law, in our
considered opinion, is that the order
granting bail should reflect the judicial
application of mind taking into
consideration the well-known parameters
including:
(i) The nature of the accusation weighing in
the gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused, i.e.
whether the accused can exercise
influence on the victim and the
witnesses or not;
(iv) Likelihood of accused to approach or try
to approach the victims/ witnesses;
(v) Likelihood of accused absconding from
proceedings;
(vi) Possibility of accused tampering with
evidence;
(vii) Obstructing or attempting to obstruct
the due course of justice;
– 11 –
(viii) Possibility of repetition of offence if
left out on bail;
(ix) The prima facie satisfaction of the court
in support of the charge including
frivolity of the charge;
(x) The different and distinct facts of
each case and nature of substantive and
corroborative evidence.
12. We hasten to add that there can be
several other relevant factors which, depending
upon the peculiar facts and circumstances of a
case, would be required to be kept in mind
while granting or refusing bail to an
accused. It may be difficult to illustrate all
such circumstances, for there cannot be any
straight jacket formula for exercising
the discretionary jurisdiction vested
in a Court under Sections 438 and 439
respectively of the CrPC, as the case may
be.”
6(iii). In CBI versus Santosh Karnani, (2023)
6 SCALE 250, the Hon’ble Supreme Court has reiterated
the illustrative time-tested broad parameters which
are required to be taken into account while considering
the prayer for bail; which have recently been reiterated
by the Hon’ble Supreme Court in the case of
State of Haryana versus Dharamraj, 2023 SCC
Online SC 1085.
– 12 –
6(iv). In normal parlance, the principle of law is
that bail is a rule and jail is an exception. However,
this Court is conscious of the fact that the power
under Section 483 of BNSS has to be exercised sparingly.
It is trite law that while considering the prayer for
bail {pre-arrest bail or regular bail], a formation of prima
facie opinion is to gathered as to whether reasonable
grounds exist pointing towards accusation or whether
the accusation is frivolous and groundless with the
object of either injuring or humiliating or where a person
has falsely been roped in the crime needs to be tested
in the background of the self-imposed restrains
or the broad parameters as mandated by law, as
referred to herein above.
6(v). This Court is also conscious of the fact
that as per the mandate of law, in Criminal Appeal
No 3840 of 2023, titled as Saumya Churasia versus
Directorate of Enforcement, decided on 14.12.2023,
while considering the prayer for bail, though a Court
– 13 –
is not required to weigh the evidence collected by
the Investigating Agency meticulously, nonetheless,
a Court should keep in mind the nature of accusation,
nature of evidence collected in support thereof,
severity of punishment prescribed for alleged offences,
character of an accused, circumstances which are
peculiar to an accused, reasonable possibility of securing
the presence of an accused during the trial and
the reasonable apprehension of tampering with evidence
and the claim for bail has to be examined by carving
a balance between the rights of an accused and the
larger societal/ public interest.
In this background, while testing the claim
for bail, a Court is required to form a prima-facie
opinion in the context of broad-parameters as referred
to above, without delving into the evidence on merits,
as it may tend to prejudice the rights of the accused
as well as the prosecution.
MANDATE OF LAW IN CLAIM FOR BAIL IN
COMMERCIAL QUANTITY:
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7. This Court is conscious of the fact that in
cases relating to commercial quantity of contraband, as
in this case, the rigours of Section 37(1)(b) of the
NDPS Act are to be satisfied in terms of mandate of
the Hon’ble Supreme Court in Narcotics Control Bureau
vs Mohit Aggarwal AIR 2022 SC 3444,
followed in Union of India vs Ajay Kumar Singh @
Pappu, SLP (Criminal) No.2351 of 2023, has been
reiterated by Hon’ble Supreme Court in State by the
Inspector of Police vs B. Ramu, SLP (Criminal)
No. 8137 of 2022 decided on 12.02.2024. Accordingly,
this Court proceeds to examine the claim of bail petitioner
[Jitender], for bail, in view of the statutory provisions of
Section 37 (1) (b) of NDPS Act and on other grounds
available by way of Exceptions to the rigors of
Section 37 of NDPS Act, in terms of the mandate of
law hereinbelow.
[A] ANALYSIS ON CLAIM FOR BAIL UNDER
SECTION 37(1) (b) OF NDPS ACT IN INSTANT
CASE:
– 15 –
8. Perusal of Status Report admits in
an unambiguous terms that the police party
recovered Poppy husk/Chura Post weighing 54.402
Kg from gunny bags in the car on 14.09.2023 in a
White Creta Hundai Car bearing registration No.
HR14P-9300. Once no contraband was recovered from
the bail petitioner [Jitender], then, the rigors of
Section 37 (1) (b) of NDPS Act, cannot be invoked in case
of the bail petitioner.
8(i). Perusal of Status Report dated 04.01.2025,
nowhere indicates, that bail petitioner Vishal Sharma
had resorted to production, possession, transportation,
import or export or was involved in sale or purchase or
use of Poppy straw or had removed such Poppy straw from
wherehouse in any manner.
8(ii). Accusation against the bail petitioner, is not
made out, when mere factum of travelling in same vehicle
cannot lead to inference against the present petitioner
when ingredients of Section 15 and Section 29 of NDPS
– 16 –
Act are to be tested, examined and proved during trial.
Moreover, nothing has been placed on record to connect
the bail petitioner with the accusation and therefore, bail
petitioner is not prima facie guilty of the accusation under
Section 15 and 29 of the Act as alleged against him.
8(iii). Case of bail petitioner is that he was not
aware that other co-accused, were carrying the
contraband in car. In these circumstances, once the
bail petitioner, specifically denies the fact, that he had
knowledge of other accused carrying contraband and
no material has been placed on record by State
Authorities in Status Report(s) that the bail petitioner
[Jitender], had knowledge of contraband, therefore, the
bail petitioner at this stage appears to be not
guilty of offence in the instant case.
8(iv). Status Report filed by State Authorities do
not spell out any material to show that the
bail petitioner has resorted to any activities, so as to
invoke the provisions of Section 15 of NDPS Act against
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the bail petitioner. Nothing has been placed on record
that the bail petitioner had produced, manufactured,
possessed, sold, transported, imported, exported or
used the contraband as alleged in the instant case. In
these circumstances, the bail petitioner appears to be
not guilty, at this stage, and therefore, the bail petitioner
deserves to be extended the benefit of bail.
8(v). Invocation of Section 29 of NDPS Act, alleging
abatement and criminal conspiracy is a matter to be
tested, examined and proved during trial. Accusation of
abatement or criminal conspiracy cannot be attributed
against the bail petitioner without any cogent material
on record. In these circumstances, based on Status
Report/material on record, this Court is of the considered
view that the bail petitioner is not guilty at this stage.
8(vi). Learned Counsel for petitioner relies on the
evidence of Spot Witnesses i.e. PW-4 and PW-5 adduced
before Learned Special Judge, Sirmaur at Nahan, wherein
PW-4 and PW-5, who were associated as Independent Spot
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Witnesses by the Police have not supported the
prosecution case at this stage. Deposition of PW-4 and PW-
5 indicate that the police personnel had asked them
[independent witnesses] to sign some blank documents
which they signed due to fear of police. Even otherwise, a
perusal of statements of Spot Witnesses PW-4 and PW-5
reveals that they have never seen accused nor has the
police stopped the car in their presence. It is deposed that
they do not know as to whether accused were sitting in
the car or not. PW-4 and PW-5 have deposed that the
police did not open the dicky of vehicle No. HR14P-9300 in
their presence. Without going into other details, the
deposition of Spot Witnesses PW-4 and PW-5 has not
supported the prosecution case, at this stage, and
therefore, the accusation and the guilt is not made out
against the bail petitioner and in these circumstances, the
bail petitioner is entitled to the concession of bail.
NOTHING ADVERSARIAL REGARDING REPITITION
OF OFFENCE AFTER BAIL:
– 19 –
9. The Status Report filed by State Authorities
has not expressed any apprehension of repetition of
offence after release on bail, which, still is being taken
care of, by imposing stringent bail conditions in later
part of this bail order.
Taking into account the entirety of the facts
and circumstances, including the Status Reports, this
Court is of the considered view that there are no
reasonable grounds to believe that the bail petitioner
is guilty and nothing exists that bail petitioner is likely
to repeat the offence after release on bail and, therefore,
even by applying the twin principles in Section 37(1) (b)
of the NDPS Act, the bail petitioner [Jitender] is
entitled to be enlarged on bail.
[B] CLAIM FOR BAIL ON OTHER EXCEPTIONAL
GROUNDS: CIRCUMSTANCES:
Notwithstanding, the discussion with respect
to claim for bail under Section 37 (1) (b) of NDPS Act
[supra], this Court is of the considered view that the
bail petitioner is entitled to be enlarged on bail on other
– 20 –
grounds for the following reasons:-
PROLONGED INCARCERATION AND INFRINGMENT
OF PERSONAL LIBERTY UNDER ARTICLE 21 OF
THE CONSTITUTION OF INDIA:
10. Learned counsel for the bail petitioner,
Mr. Karun Negi, submits that FIR in instant case was
registered on 14.09.2023 and petitioner is in custody
for more than 1 year 4 months now. It is submitted
that Investigation is complete and Challan-Final Police
Report dated 23.01.2024 has been presented before
jurisdictional Court and charges have been framed and
out of 29-PWs only 7 PWs have been examined by
Learned Special Judge, Nahan and now case has been
fixed for 28.02.2025.
10(i). While dealing with the claim for bail, where
the accused had suffered incarceration for more than
14 months, coupled with the fact that there is no much
progress in the trial and such trail was to take
considerable time, the Hon’ble Supreme Court in
Mukesh Kumar versus State of Rajasthan and
– 21 –
another, 2023 SCC OnLine SC 2025, granted bail to
the accused therein, in the following terms:-
“2. The petitioner is accused of giving one blow
on the head of the deceased with a
danda (Bamboo). It may also be mentioned that
occurrence took place on 08-06-2020 and the
deceased succumbed to his injuries on 12-06-
2020.
5. After cancellation of bail by the High Court,
the petitioner has again surrendered on
16-11-2022 and is in custody.
7. It may be seen that there are cross-versions and
both sides suffered injuries. The question as to
who was the aggressor will depend upon the
appreciation of evidence and will be decided
by the Trial Court at an appropriate stage. It
is not expedient or desirable for this Court to
express any opinion in relation thereto at
this stage.
8. Suffice to say that the petitioner has
been in custody for more than 14
months, the crucial witnesses have since
been examined and there is no likelihood
of tampering with the evidence. Even
otherwise also, the witnesses are close
family members of both sides, hence there
is no likelihood of winning over the
witnesses.
9. Since conclusion of trial will take
considerable time, we deem it appropriate
to release the petitioner on bail.
11. Consequently, without expressing any views
on the merits of the case, the petitioner
is directed to be released on bail, subject
to his furnishing bail bonds to the satisfaction
of the Trial Court.
– 22 –
12. The petitioner and his family members as
well as Respondent No. 2 and his family
members will ensure that no untoward incident
takes place again.”
10(ii). While reiterating the principle that bail is
a rule and jail is an exception and no accused can be
deprived of personal liberty on mere accusation and
an accused is to be treated as innocent in the eyes of
law, the Hon’ble Supreme Court has outlined the object
of bail in Guddan alias Roop Narayan Versus State
of Rajasthan, 2023 SCC OnLine SC 1242, in the
following terms:-
“11. In the case of Sanjay Chandra V. Central Bureau
of Investigation, (2012) 1 SCC 40, while hearing a
bail Application in a case of an alleged
economic offence, this court held
that the object of bail is neither punitive
nor preventative. It was observed as under:
“21. In bail applications, generally, it has
been laid down from the earliest times
that the 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. Deprivation of
liberty must be considered a
punishment, unless it is required to
ensure that an accused person will
stand his trial when called upon. The
courts owe more than verbal respect to
the principle that punishment begins
– 23 –
after conviction, and that every
man is deemed to be innocent until
duly tried and duly found guilty.
23. Apart from the question of prevention
being the object of refusal of
bail, one must not lose sight of
the fact that any imprisonment
before conviction has a substantial
punitive content and it would be
improper for any court to refuse bail
as a mark of disapproval
of former conduct whether the
accused has been convicted for
it or not or to refuse bail to
an unconvicted person for the
purpose of giving him a taste
of imprisonment as a lesson.
25. The provisions of Cr PC confer
discretionary jurisdiction on criminal
courts to grant bail to the accused
pending trial or in appeal against
convictions; since the jurisdiction is
discretionary, it has to be exercised
with great care and caution by
balancing the valuable right
of liberty of an individual
and the interest of the society
in general. In our view, the reasoning
adopted by the learned District Judge,
which is affirmed by the
High Court, in our opinion, is a
denial of the whole basis of our system
of law and normal rule
of bail system. It transcends respect
for the requirement that
a man shall be considered innocent
until he is found guilty. If such
power is recognised, then it may lead
to chaotic situation and would
jeopardise the personal liberty of an
individual.
– 24 –
27. This Court, time and again, has
stated that bail is the rule and
committal to jail an exception. It
has also observed that refusal
of bail is a restriction on the
personal liberty of the individual
guaranteed under Article 21 of
the Constitution.”
12. Further, in the case of Sandeep Jain v.
National Capital Territory of Delhi, (2000)
2 SCC 66, this Court, while hearing a
bail application held that conditions for
grant of bail cannot become so onerous
that their existence itself is tantamount
to refusal of bail. This Court held as
under:
” We are unable to appreciate even the
first order passed by the Metropolitan
Magistrate imposing the onerous condition that
an accused at the FIR stage should pay a huge
sum of Rs. 2 lakhs to be set at liberty. If he had
paid it is a different matter. But the fact that he
was not able to pay that amount and in default
thereof he is to languish in jail for more than 10
months now, is sufficient indication that he was
unable to make up the amount. Can
he be detained in custody endlessly for
his inability to pay the amount in the
range of Rs.2 lakhs? If the cheques issued
by his surety were dishonoured, the Court
could perhaps have taken it as a ground
to suggest to the payee of the cheques
to resort to the legal remedies provided
by law.
Similarly if the Court was dissatisfied
with the conduct of the surety as for his
failure to raise funds for honouring the
cheques issued by him, the Court could have
directed the appellant to substitute him
with another surety. But to keep
him in prison for such a long period, that
too in a case where bail would normally be
granted for the offences alleged, is not only
hard but improper. It must be remembered
– 25 –
that the Court has not even come to the
conclusion that the allegations made in the FIR
are true. That can be decided only when the
trial concludes, if the case is charge-sheeted by
the police.”
REFORMATIVE APPROACH: BAIL:
10(iii). While dealing with the concept of bail and
personal liberty of an accused under Article 21 of the
Constitution of India, the Hon’ble Supreme Court, in
Criminal Appeal No.2787 of 2024, titled as Javed Gulam
Nabi Shaikh Versus State of Maharashtra and
Another, as under:-
“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, may be, 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
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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.
20. 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.
21 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.
22 In view of the aforesaid, this appeal succeeds
and is hereby allowed. The impugned
order passed by the High Court is set
aside.”
BAIL NOT TO BE WITHHELD BY WAY OF PENALTY:
ARTICLE 21
10(iv). While dealing with a matter relating to the
prolonged incarceration and the right to speedy trial
and right of liberty to be sacrosanct right and while
deprecating that the bail is not to be withheld as
punishment the Hon’ble Supreme Court, in Manish
Sisodia vs Directorate of Enforcement, SLP (Criminal)
No.8781 of 2024, decided on 09.08.2024, has affirmed
– 27 –
the principle that bail is a rule and Jail is an exception. as
under :-
“49. We find that, on account of a long
period of incarceration running for around
17 months and the trial even not having
been commenced, the appellant has been
deprived of his right to speedy trial.
50. As observed by this Court, the right to speedy
trial and the right to liberty are sacrosanct
rights. On denial of these rights, the trial
court as well as the High Court ought to have
given due weightage to this factor.
52. The Court also reproduced the observations
made in Gudikanti Narasimhulu (supra),
which read thus:
“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 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””
53. The Court further observed that, 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
– 28 –
be withheld as a punishment. From our
experience, we can say that it appears that
the trial courts and the High Courts attempt
to play safe in matters of grant of bail.
The principle that bail is a rule and
refusal is an exception is, at times, followed
in breach. On account of non-grant of
bail even in straight forward open and
shut cases, this Court is flooded with huge
number of bail petitions thereby adding
to the huge pendency. It is high time
that the trial courts and the High
Courts should recognize the principle that
“bail is rule and jail is exception”.
55. As observed by this Court in the case of Gudikanti
Narasimhulu (supra), the objective to keep
a person in judicial custody pending trial or
disposal of an appeal is to secure the
attendance of the prisoner at trial.
56. In the present case, the appellant is having deep
roots in the society. There is no possibility of
him fleeing away from the country and not
being available for facing the trial. In any case,
conditions can be imposed to address the concern
of the State.
57. Insofar as the apprehension given by the learned
ASG regarding the possibility of tampering the
evidence is concerned, it is to be noted that
the case largely depends on documentary
evidence which is already seized by the
prosecution. As such, there is no possibility of
tampering with the evidence. Insofar as the
concern with regard to influencing the
witnesses is concerned, the said concern can
be addressed by imposing stringent
conditions upon the appellant.”
10(v). While adjudicating the claim for bail, even
under Special Enactments, like PMLA [akin to NDPS
Act], the Hon’ble Apex Court in Criminal Appeal No.
_____ of 2024 [Arising out of SLP (Criminal) No. 10778
– 29 –
of 2024], titled as Kalvakuntla Kavitha Versus
Directorate of Enforcement and connected matter
has mandated that fundamental right of liberty provided
under Article 21 of the Constitution of India is superior
to the statutory restrictions, in the following terms:-
“13. We had also reiterated the well-established
principle that “bail is the rule and refusal
is an exception”. We had further observed
that the fundamental right of liberty
provided under Article 21 of the Constitution
is superior to the statutory restrictions.”
RIGOURS OF STRINGENT PROVISIONS IN SPECIAL
ENACTMENT [SECTION 37 NDPS] TO GIVE WAY
FOR BAIL BASED ON PROLONGED INCARCERATION
AND NO LIKELIHOOD OF COMPLETION OF TRIAL
IN CONSIDERABLE TIME:
10(vi). While dealing with the claim for bail under
Special Enactments and rigors of Section 45 (1) (ii) of
MPLA and proviso to Section 43-D (5) of the Unlawful
Activities [Prevention] Act, 1967 and Section 37 of
NDPS Act, the Hon’ble Supreme Court in Criminal
Appeal No.4011 of 2024, in re: V. Senthil
Balaji Versus The Deputy Director, Directorate of
Enforcement, has mandated that rigors in Special
Enactments, including Section 37 of NDPS Act, will
– 30 –
melt down where, there is no likelihood of trial being
completed in a reasonable time and the prolonged
incarceration so as prevent deprivation or curtailment of
personal liberty and to ensure right of speedy trial, in
terms of Article 21 of Constitution of India, in the following
terms:-
“24. There are a few penal statutes that make a
departure from the provisions of Sections
437, 438, and 439 of the Code of Criminal
Procedure, 1973. A higher threshold is provided
in these statutes for the grant of
bail. By way of illustration, we may refer
to Section 45(1)(ii) of PMLA, proviso
to Section 43D(5) of the Unlawful Activities
(Prevention) Act, 1967 and Section 37 of the
Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, ‘NDPS Act’).
The provisions regarding bail in some of such
statutes start with a non obstante clause for
overriding the provisions of Sections
437 to 439 of the CrPC. The legislature has
done so to secure the object of making the
penal provisions in such enactments. For
example, the PMLA provides for Section
45(1)(ii) as money laundering poses a serious
threat not only to the country’s financial system
but also to its integrity and sovereignty.
25. Considering the gravity of the offences in
such statutes, expeditious disposal of trials
for the crimes under these statutes is
contemplated. Moreover, such statutes
contain provisions laying down higher
threshold for the grant of bail. The
expeditious disposal of the trial is also
– 31 –
warranted considering the higher threshold set
for the grant of bail. Hence, the requirement of
expeditious disposal of cases must be read into
these statutes. Inordinate delay in the
conclusion of the trial and the higher
threshold for the grant of bail cannot go
together. It is a well settled principle of our
criminal jurisprudence that “bail is the
rule, and jail is the exception.” These
stringent provisions regarding the grant of
bail, such as Section 45(1)(iii) of the PMLA,
cannot become a tool which can be used to
incarcerate the accused without trial for an
unreasonably long time.
26. There are a series of decisions of this Court
starting from the decision in the case of
K.A. Najeeb, which hold that such stringent
provisions for the grant of bail do not take
away the power of Constitutional Courts to
grant bail on the grounds of violation of
Part III of the Constitution of India. We have
already referred to paragraph 17 of the
said decision, which lays down that the
rigours of such provisions will melt down
where there is no likelihood of trial being
completed in a reasonable time and the
period of incarceration already undergone
has exceeded a substantial part of the
prescribed sentence. One of the reasons is
that if, because of such provisions,
incarceration of an under-trial accused is
continued for an unreasonably long time,
the provisions may be exposed to the vice of
being violative of Article 21 of the
Constitution of India.
27. Under the Statutes like PMLA, the minimum
sentence is three years, and the maximum is
seven years. The minimum sentence is higher
when the scheduled offence is under the NDPS
Act. When the trial of the complaint under
PMLA is likely to prolong beyond reasonable
– 32 –
limits, the Constitutional Courts will have to
consider exercising their powers to grant bail.
The reason is that Section 45(1)(ii) does not
confer power on the State to detain an accused
for an unreasonably long time, especially when
there is no possibility of trial concluding within
a reasonable time. What a reasonable time is
will depend on the provisions under which the
accused is being tried and other factors. One of
the most relevant factor is the duration of the
minimum and maximum sentence for the
offence. Another important consideration is the
higher threshold or stringent conditions which
a statute provides for the grant of bail. Even an
outer limit provided by the relevant law for the
completion of the trial, if any, is also a factor to
be considered. The extraordinary powers, as
held in the case of K.A. Najeeb, can only be
exercised by the Constitutional Courts. The
Judges of the Constitutional Courts have
vast experience. Based on the facts on
record, if the Judges conclude that there is
no possibility of a trial concluding in a
reasonable time, the power of granting bail
can always be exercised by the
Constitutional Courts on the grounds of
violation of Part III of the Constitution of
India notwithstanding the statutory
provisions. The Constitutional Courts can
always exercise its jurisdiction
under Article 32 or Article 226, as the case
may be. The Constitutional Courts have to
bear in mind while dealing with the cases
under the PMLA that, except in a few
exceptional cases, the maximum sentence
can be of seven years. The Constitutional
Courts cannot allow provisions like Section
45(1)(ii) to become instruments in the hands
of the ED to continue incarceration for a
long time when there is no possibility of a
trial of the scheduled offence and the PMLA
offence concluding within a reasonable
– 33 –
time. If the Constitutional Courts do not
exercise their jurisdiction in such cases, the
rights of the undertrials under Article 21 of
the Constitution of India will be defeated. In
a given case, if an undue delay in the
disposal of the trial of scheduled offences
or disposal of trial under the PMLA can be
substantially attributed to the accused, the
Constitutional Courts can always decline to
exercise jurisdiction to issue prerogative
writs. An exception will also be in a case
where, considering the antecedents of the
accused, there is every possibility of the
accused becoming a real threat to society if
enlarged on bail. The jurisdiction to issue
prerogative writs is always discretionary.
29. As stated earlier, the appellant has been
incarcerated for 15 months or more for the
offence punishable under the PMLA. In the
facts of the case, the trial of the scheduled
offences and, consequently, the PMLA
offence is not likely to be completed in three
to four years or even more. If the appellant’s
detention is continued, it will amount to an
infringement of his fundamental right
under Article 21 of the Constitution of India
of speedy trial.
31. Therefore, the appeal is allowed, and the
appellant shall be enlarged on bail till the
final disposal of CC No. 9 of 2023 pending
before the Principal Session Judge, Chennai, on
the following conditions:
a. The appellant shall furnish bail bonds in the
sum of Rs.25,00,000/ (Rupees twenty five lakhs
only) with two sureties in the like amount;
b. The appellant shall not directly or indirectly
attempt to contact or communicate with the
prosecution witnesses and victims of the three
scheduled offences in any manner. If it is found
that the appellant directly or indirectly made
– 34 –
even an attempt to contact any prosecution
witness or victim in the scheduled as well as
offences under the PMLA, it will be a ground to
cancel the bail granted to the appellant;
c. The appellant shall mark his attendance
every Monday and Friday between 11 am and
12 noon in the office of the Deputy Director, the
Directorate of Enforcement at Chennai. He shall
also appear on the first Saturday of every
calendar month before the investigating officers
of the three scheduled offences;
d. Before the appellant is enlarged on bail, he
shall surrender his passport to the Special
Court under the PMLA at Chennai;
e. The appellant shall regularly and punctually
remain present before the Courts dealing with
scheduled offences as well as the Special Court
and shall cooperate with the Courts for early
disposal of cases; and
f. If the appellant seeks adjournments on non-
existing or frivolous grounds or creates hurdles
in the early disposal of the cases mentioned
above, the bail granted to him shall be liable to
be cancelled.
32. The appeal is allowed on the above terms.”
10(vii). The Hon’ble Supreme Court in Criminal
Appeal No.5266 of 2024 (Arising out of SLP (CRL.)
No.13870 of 2024, titled as Partha Chatterjee Versus
Directorate of Enforcement, decided on 13.12.2024,
2024 SCC Online SC 3729, has reiterated that the
statutory embargoes on the grant of bail must yield when
– 35 –
weighed against the paramount importance of right to life
and liberty under Article 21 of the Constitution of India, in
cases, where the incarceration extends even an
unreasonably long period without conclusion of the trial
making such incarceration punitive, has been deprecated
in the following terms:-
“13. We have considered the rival submissions and
carefully examined the material on record. At
the outset, it is worth reiterating that this
Court, through a catena of decisions, has
consistently emphasized that prolonged
incarceration of an accused awaiting
trial unjustly deprives them of their right
to personal liberty. Even statutory
embargoes on the grant of bail must yield
when weighed against the paramount
importance of the right to life
and liberty under Article 21 of the
Constitution, particularly in cases where
such incarceration extends over an
unreasonably long period without
conclusion of trial.
17. We, however, cannot be oblivious to the
settled principles that a suspect cannot be
held in custody indefinitely and that
undertrial incarceration should not amount
to punitive detention. The Court would,
nevertheless, ensure that affluent or influential
accused do not obstruct the ongoing
investigation, tamper with evidence, or
influence witnesses, namely, actions that
undermine the fundamental doctrine of a fair
trial.
– 36 –
18. Striking a balance between these considerations
and without expressing any opinion on the
merits of the allegations, we deem it appropriate
to dispose of this appeal with the following
directions:
a to e ……………………………………………
f. The Petitioner shall thereafter be released
on bail on 01.02.2025, subject to his
furnishing bail bonds to the satisfaction of
the Trial Court;
g to i…………………………………..”
Keeping in view the factual matrix that
no reasonable grounds exist against the bail petitioner,
as referred to above, coupled with the fact the bail
petitioner has suffered incarceration for more than
1 year 4 months [since 14.09.2023] and even trial is
likely to take considerable time for the reason, that out
of total 29 PWs, only 7 PWs have been examined, therefore,
further detention shall certainly amount to depriving
and curtailing the personal liberty of the petitioner on
mere accusation or conjectures or surmises, which are
yet to be tested, examined and proved during the
trial. Detention of the petitioner can neither be punitive
nor preventative, so as to make the petitioner to
– 37 –
taste imprisonment as a lesson. Denial of bail shall
certainly violates the principle that “bail is rule and jail
is an exception”. Even, the State Authorities, have failed
to ensure speedy trial and still considerable time is
likely to be taken for conclusion of trial, then, in view
of mandate of law in the cases of Guddan alias
Roop Narayan, Javed Gulam Nabi Shaikh, Manish
Sisodia, Kalvakuntla Kavitha, Senthil Balaji and
Partha Chatterjee [supra], the petitioner deserves to be
released on bail.
MANDATE OF HON’BLE SUPREME COURT IN
GRANTING BAIL IN CASES OF COMMERCIAL
QUANTITY WHERE THERE WAS NO LIKELIHOOD OF
ITS COMPLETION:
11. In similar situation while dealing the
involvement of accused of commercial quantity of
contraband, Hon’ble Supreme Court has extended the
benefit of bail to the bail petitioner in Petition(s) for
Special Leave to Appeal (Crl.) No(s).1904/2023, titled
as Sunil Kumar Versus The State of Himachal
Pradesh, decided on 29.03.2023, in the following terms:-
– 38 –
“It is noted that the petitioner has been in
custody for more that one and a half years
and the trial is yet to conclude. Earlier, the
petitioner had been granted interim bail on
two occasions and has not misused the liberty
of interim bail or violated any of the bail
conditions imposed upon him but
has thereafter, surrendered back.
Therefore, keeping all these aspects in view, the
petitioner is ordered to be released on bail
subject to appropriate conditions being imposed
by the Trial Court including the condition that
the petitioner shall diligently participate in the
trial. Ordered accordingly.”
11(i). In Petition(s) for Special Leave to Appeal
(Crl.) No(s).4648/2024, titled as Ankur Chaudhary
Versus State of Madhya Pradesh, decided on
28.05.2024, Hon’ble Supreme Court extended benefit of
bail by invoking Article 21 of Constitution of India
as prolonged incarceration defeats the precious
fundamental rights and such fundamental rights have
to override the statutory embargo in Section 37 (1) (b)
of NDPS Act in the following terms:-
“Now, on examination, the panch witnesses
have not supported the case of prosecution. On
facts, we are not inclined to consider the
Investigation Officer as a panch witness. It is to
observe that failure to conclude the trial
within a reasonable time resulting in
prolonged incarceration militates against
– 39 –
the precious fundamental right guaranteed
under Article 21 of the Constitution of
India, and as such, conditional liberty
overriding the statutory embargo created
under Section 37(1)(b) of the NDPS Act may,
in such circumstances, be considered.
In view of the above, we are inclined to allow
this petition and direct to enlarge the petitioner
on bail on furnishing the suitable bail bonds
and sureties and on such other terms and
conditions as may be deemed fit by the trial
Court.”
11(ii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s).7115/2024, titled as Sohrab Khan Versus
The State of Madhya Pradesh, decided on 13.08.2024,
the Hon’ble Supreme Court has extended the benefit of
concession of bail to an accused, who was facing
incarceration of one year and four months and had
no criminal antecedents as in this case, in the following
terms:-
“The petitioner is an accused for the alleged
offences punishable under Sections 8/22 and
29 of the Narcotic Drugs and Psychotropic
Substances Act. His bail application was
dismissed by the High Court. He has already
undergone about one year and four months
in jail. The petitioner and com accused were
found in possession of 80 grams of MD powder
each of which commercial quantity is 50 grams.
– 40 –
Considering the fact that the petitioner
criminal antecedents and the entire facts
and circumstances has no of this case, we
are of the opinion that a case of bail is made
out for the petitioner and therefore, the prayer
of the petitioner is allowed.
Accordingly, the petitioner is directed to be
released on bail forthwith on the usual terms
and conditions to be decided by the concerned
Court.”
11(iii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s).9510/2024, titled as Ram Lal Versus
The State of Rajasthan, decided on 17.09.2024,
similar benefit of bail was extended where the
incarceration was prolonged and the accused had
no criminal antecedents, as in this case, in the
following terms:-
“The petitioner and the other accused persons
are accused for the offences punishable under
Sections 8/21 & 8/29 of the Narcotic Drugs
and Psychotropic Substances Act and allegation
is that 450 gm of smack has been recovered
from them. The bail application of the petitioner
was dismissed by the High Court. Hence, he
approached this Court. He has already
undergone about 1 year and 6 months in jail.
Heard learned counsel for the petitioner. As per
office report Rated 13.09.2924, the service is
deemed complete on the sole respondent-State
but no one has appeared for the state.
– 41 –
Considering the period of incarceration of
the petitioner and the fact that the
petitioner has no criminal antecedents, we
are of the opinion that a case of bail is
made out for the petitioner.
Accordingly, the petitioner is directed to be
released on bail forthwith on the usual terms
and conditions to be decided by the concerned
Court.”
MANDATE OF THIS COURT IN GRANTING BAIL IN
CASES OF COMMERCIAL QUANTITY WHERE TRIAL
WAS PROLONGED AND THERE WAS NO
LIKELIHOOD OF COMPLETION :
11(iv). While dealing with the claim for bail in
a case, a Co-ordinate Bench of this Court, in Cr.MP (M)
No.2618 of 2023, Jasbir Singh versus State of
Himachal Pradesh, decided on 4.11.2023 has affirmed
the right to bail in view of the prolonged detention of the
accused therein, in the following terms:-
“5(ii). ….. In 2021 (3) SCC, 713, Union of India
Versus K.A. Najeeb, Hon’ble Apex Court
considered various judicial precedents where
Article 21 of the Constitution of India was
invoked in case of gross delay in disposal of
cases of under- trials and consequential
necessity to release them on bail. The earlier
decisions were reiterated that liberty granted by
Part-III of the Constitution, would cover within
its protective ambit not only due procedure and
fairness, but also access to justice and speedy
trial. It was held that once it is obvious that a
timely trial would not be possible and the
accused have suffered incarceration for a
– 42 –
significant period of time, the Courts would
ordinarily be obligated to enlarge them on
bail. Some relevant paras from the judgments
are extracted hereinafter:-
“10. It is a fact that the High Court in
the instant case has not determined
the likelihood of the respondent being
guilty or not, or whether rigours of Section
43D(5) of UAPA are alien to him. The High
Court instead appears to have exercised its
power to grant bail owing to the long period
of incarceration and the unlikelihood
of the trial being completed anytime
in the near future. The reasons assigned
by the High Court are apparently
traceable back to Article 21 of our Constitution,
of course without addressing the statutory
embargo created by Section 43D (5) of UAPA.
11. The High Court’s view draws support from a
batch of decisions of this Court, including in
Shaheen Welfare Assn, laying down that gross
delay in disposal of such cases would
justify the invocation of Article 21
of the Constitution and consequential
necessity to release the undertrial
on bail. It would be useful to quote the
following observations from the cited case:
“10. Bearing in mind the nature
of the crime and the need to protect the
society and the nation, TADA has
prescribed in Section 20(8) stringent
provisions for granting bail. Such
stringent provisions can be justified
looking to the nature of the crime, as was
held in Kartar Singh case, on the
presumption that the trial of the accused
will take place without undue delay. No
one can justify gross delay in disposal of
cases when undertrials perforce remain
in jail, giving rise to possible situations
– 43 –
that may justify invocation of Article 21.”
…
(emphasis supplied)
12. Even in the case of special legislations
like the Terrorist and Disruptive Activities
(Prevention) Act, 1987 or the Narcotic Drugs
and Psychotropic Substances Act, 1985 (” the
NDPS Act”) which too have somewhat rigorous
conditions for grant of bail, this Court
in Paramjit Singh v. State (NCT of Delhi),
Babba v. State of Maharashtra and
Umarmia alias Mamumia v. State of Gujarat
enlarged the accused on bail when they had
been in jail for an extended period of time
with little possibility of early completion
of trial. The constitutionality of harsh
conditions for bail in such special enactments,
has thus been primarily justified on the
touchstone of speedy trials to ensure the
protection of innocent civilians.
13. We may also refer to the orders enlarging
similarly situated accused under the UAPA
passed by this Court in Angela Harish Sontakke
v. State of Maharashtra. That was also a
case under Sections 10, 13, 17, 18, 18A,
18B, 20, 21, 38, 39 and 40(2) of the UAPA.
This Court in its earnest effort to draw balance
between the seriousness of the charges with the
period of custody suffered and the likely
period within which the trial could be expected
to be completed took note of the five
years’ incarceration and over 200 witnesses
left to be examined, and thus granted bail to
the accused notwithstanding Section 43D(5) of
UAPA. Similarly, in Sagar Tatyaram Gorkhe v.
State of Maharashtra, an accused under the
UAPA was enlarged for he had been in jail for
four years and there were over 147 witnesses
still unexamined.
15. This Court has clarified in numerous
judgments that the liberty guaranteed
– 44 –
by Part III of the Constitution would
cover within its protective ambit not only due
procedure and fairness but also access to
justice and a speedy trial. In Supreme Court
Legal Aid Committee (Representing Under-trial
Prisoners) v. Union of India, it was held that
undertrials cannot indefinitely be detained
pending trial. Ideally, no person ought to
suffer adverse consequences of his acts
unless the same is established before a
neutral arbiter. However, owing to the
practicalities of real life where to secure an
effective trial and to ameliorate the risk to
society in case a potential criminal is left at
large pending trial, Courts are tasked with
deciding whether an individual ought to be
released pending trial or not. Once it is
obvious that a timely trial would not be
possible and the accused has suffered
incarceration for a significant period of
time, Courts would ordinarily be obligated
to enlarge them on bail.
17. It is thus clear to us that the presence of
statutory restrictions like Section 43D (5) of
UAPA per se does not oust the ability of
Constitutional Courts to grant bail on grounds
of violation of Part III of the Constitution.
Indeed, both the restrictions under a Statue as
well as the powers exercisable under
Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of
proceedings, 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 safeguard
against the possibility of provisions like Section
43-D (5) of UAPA being used as the sole metric
– 45 –
for denial of bail or for wholesale breach of
constitutional right to speedy trial.”
5(iv). ……A previous bail petition bearing Cr.MP
(M) No.1458/2022 instituted by the petitioner
was dismissed on merit on 02.09.2022.
While deciding the aforesaid bail petition,
considering the fact that FIR in question
pertained to the year 2020, it was hoped
and expected that the learned Trial
Court would make endeavour to expedite
the trial. We are now at the fag end
of 2023. In terms of the status report
filed by the respondent, the prosecution
has examined 16 witnesses thus far.
Statements of 23 prosecution witnesses still
remain to be recorded. The zimni
orders placed on record reflect that the
trial has been deferred time and again
for want of presence of prosecution witnesses.
Considering the fact that at this stage
23 witnesses remain to be recorded,
it is apparent that the trial is not
going to be concluded in near future.
The petitioner, who has already spent about
three years and five months in custody, in
my considered opinion has made out a case
for his enlargement on regular bail at this
stage. There is no criminal history of the
petitioner. The apprehension expressed by the
prosecution about the likelihood of petitioner’s
tampering with the evidence or winning over
remaining witnesses, can be taken care of by
imposing stringent conditions and also granting
liberty to the respondent/State to seek
cancellation of the bail in case the
conditions are violated by the petitioner. In view
of all the aforesaid reasons and
without expressing any opinion on the
merits of the case, the present petition
is allowed. Petitioner is ordered to be
released on bail in the aforesaid
FIR…..”
– 46 –
11(v). While dealing with the claim for bail in
commercial quantity of 1.004 Kgs. charas and taking
into account the prolonged incarceration for about
13 months, the Co-ordinate Bench of this Court, has
extended concession of bail to the accused, in Cr.MP(M)
No.1003 of 2024, titled as Vijay Singh Versus State
of Himachal Pradesh, decided on 24.05.2024, in the
following terms:-
“10. Though, the case at hand is to be decided by
learned trial Court, in the totality of evidence
collected on record by the investigating agency,
but having noticed aforesaid glaring aspects of
the matter, there appears to be no justification
for this Court to let the bail petitioner
incarcerate in jail, for an indefinite period
during trial, especially when rigours of S.37 of
the Act are not attracted on account of recovery
of small quantity.
11. Learned counsel for the petitioner while inviting
attention of this court to judgments dated
4.3.2023 and 15.3.2023 passed in Cr.MP(M)
No. 62 and 570 of 2023, titled Puran Chand v.
State of HP and Prem chand v. State of HP.,
submitted that in similar facts and
circumstances, coordinate Bench of this Court
as well as this Court enlarged the accused on
bail on the ground of inordinate delay. Having
perused aforesaid judgments passed by the
coordinate Bench of this Court, this Court finds
that in both the cases, commercial quantity of
contraband was recovered from the accused,
– 47 –
but yet court having taken note of the fact that
they were behind the bars for more than three
years, proceeded to enlarge them on bail.
12. 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.
13. Learned Counsel appearing for the petitioner, to
substantiate his plea for enlarging the
petitioner on bail, has referred order dated
12.10.2020 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 was no further progress in the
trial.
14. Recently, Hon’ble Apex Court in SLP(Crl) No.
1904 of 2023 titled Sunil Kumar v. The State
of Himachal Pradesh, decided on 29.3.2023,
has ordered enlargement of petitioner therein,
who was behind bars for one and half years, on
the ground of delay in trial and conduct of the
petitioner.
– 48 –
15. 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,
especially in the cases where rigors of Section
37 are attracted.
16. In the instant case, bail petitioner is behind
bars for more than 13 months and till date trial
has not been completed and there are very
bleak chances of conclusion of the same in near
future, as such, there appears to be no
justification to keep the bail petitioner behind
the bars for an indefinite period, during trial.”
11(vi). Recently, the Co-ordinate Bench of this
Court in Cr.MP(M) No.2656 of 2024, titled as Kamal
Singh Versus State of Himachal Pradesh, decided
on 11.12.2024, has enlarged the accused on bail in
case relating to commercial quantity of Charas, i.e. 1.209
Kgs. where the accused was facing incarceration for about
12 months, in the following terms:-
“2. …………………….Allegedly, police recovered
one rucksack (pithu bag) from the vehicle
containing huge quantity of contraband. On
weighing, police found that 1.209 Kgs. of
charas/sulfa was being transported by the
occupants in the vehicle, as detailed
hereinabove. Since, no plausible
explanation ever came to be rendered on
record qua possession of aforesaid
commercial quantity of contraband……….”
– 49 –
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…………..”
Keeping in view the material on record, as
borne out from the Status Reports and the statements
recorded during Investigation and the evidence of
PWs adduced at this stage, and the law referred to above
coupled with the fact that no reasonable grounds exist
to believe the accusation against bail petitioner at
this stage, coupled with the fact that the trial is likely
to take considerable time for its conclusion ; with added
fact that delay in trial was not at all attributable to bail
petitioner therefore, in these circumstances any further
detention shall certainly amounts to implicating the
petitioner on mere accusation or conjectures-suspicion
and that too by way of punishment which shall defeat
intent and object of bail, despite having made the
petitioner to suffer incarceration for about 1 year and
– 50 –
4 months now; and in these circumstances, the plea for
bail carries weight and the same is accordingly granted.
NO PAST CRIMINAL ANTECEDENTS:
12. Status Reports do not indicate any past
criminal incident against the bail petitioner and once
no cogent reasons-material and evidence exists against
him, at this stage, therefore, prolonging the detention
shall certainly violate the personal liberty of the
petitioner mandated under Article 21 of the Constitution
of India.
13. Status Reports filed by State Authorities do
not indicate that any recovery is still attributable to the
petitioner in the aforesaid incident.
NOTHING ADVERSARIAL REGARDING TAMPERING
WITH EVIDENCE OR WITNESSES ETC:
14. The Status Reports filed by State Authorities
have neither pointed out any adversarial circumstances
nor placed any material on record, at this stage, to
infer that after release on bail, the petitioner is likely
to tamper with evidence or may cause any inducement,
– 51 –
threat or promise to any person or persons acquainted
with the facts of the case. However, the apprehension
if any, of the State Authorities can be safeguarded,
at this stage by imposing stringent conditions in this
bail order.
NOTHING ADVERSARIAL REGARDING
OBSTRUCTING OR ATTEMPTING TO THROTTLING
JUSTICE:
15. Status Reports filed by State Authorities
have neither pointed out any adversarial circumstances
nor placed any material on record, at this stage, to infer
that after release on bail, the petitioner may obstruct
or thwart the cause of justice in any manner. However,
the apprehension if any, of the State Authorities are
taken care of, by imposing stringent bail conditions as
mandated herein, in the instant case.
CO-ACCUSED RELEASED ON BAIL:
16. Co-accused Sattu Jogi released on 18.10.2023.
Perusal of Status Reports reveal that one of the
co-accused Sattu Jogi, who was detained and sent to
Juvenile Justice Home at Nahan alleging him to be
– 52 –
a minor but after ossification test he came out to be
major but was released on 18.10.2023. Once the co-
accused Sattu Jogi, being major and bail petitioner Vishal
Sharma were mere travellers in ill-fated White Creta
Hundai Car and therefore, the bail petitioner [Jitender]
is entitled for enlargement of bail when, co-accused, Sattu
Jogi, has been released, on the principle of parity.
17. In order to safeguard the rights of bail
petitioner and to take care of apprehensions of State
[despite the fact that nothing has been placed on
record against bail petitioner may flee away], yet, in
peculiar facts of this case, this Court imposes stringent
conditions in later part of this order.
18. Taking into account the entirety of the facts
and the material on record and the mandate of law,
as referred to above, and in the peculiar facts of
this case, the instant petition is allowed, and the
State Authorities are directed to release the petitioner
– 53 –
[Jitender] on bail, subject to observance of the following
conditions:-
(i) Respondent-State Authorities shall release
bail petitioner [Jitender] on furnishing
personal bond of Rs.75,000/- {Rs Seventy
Five Thousand} with two sureties on furnishing
similar bond amount each, to the satisfaction
of the Learned Trial Court concerned;
(ii) Petitioner shall undertake and shall also appear on
every date of trial hereinafter;
(iii) Petitioner shall abide by all or any other
condition(s), which may be imposed by the Learned
Trial Court, in view of this order;
(iv) Petitioner shall neither involve himself nor shall
abet the commission of any offence hereinafter.
Involvement in any offence whatsoever or abetting
thereof shall entail automatic cancellation of
bail granted in terms of this order ;
(v) Petitioner shall disclose his functional E-Mail IDs/
WhatsApp number and that of his surety
to the Learned Trial Court;
(vi) Petitioner after release, shall report to the
Investigating Officer or SHO of Police Station
concerned, nearest to his native place, on 2nd
Sunday of every month at 08.00 a.m., only for
having an update on good conduct and behaviour;
(vii) Petitioner shall not jump over the bail and
also shall not leave the country without the
prior information of the Court;
(viii) Petitioner shall not tamper with the evidence
in any manner;
(ix) Petitioner shall not cause any inducement,
threat or promise {directly or indirectly} to witnesses
of any other person acquainted with the case;
– 54 –
(x) Petitioner is free to seek modification of
any condition contained hereinabove, if need
arises;
(xi) State Authorities are free to move this Court
for seeking alteration/modification of any of
the condition contained in this order or any
condition imposed by the Learned Trial Court
as a sequel to this order, in fact situation
of instant case or circumstances so necessitate,
at any time herein-after;
(xii) State Authorities are free to move this Court
for seeking cancellation of the concession of
bail, in case, the petitioner violates any of
the conditions contained in this order.;
19. Observations made in this judgment shall
not be construed in any manner as an indictive of
findings, for or against the parties herein, either for
the purpose of investigation or for trial, which shall
proceed in-accordance with law, irrespective of any of
the observations contained hereinabove.
20. Petitioner is permitted to produce/use copy
of this order, downloaded from the web-page of the
High Court of Himachal Pradesh, before the authorities
concerned, and the said authorities shall not insist for
production of a certified copy, but if required, may
– 55 –
verify about the passing of this order from the Website
of this Court.
21. The Registry is directed to forward a copy
of this order to Superintendent of Police, Sirmaur at
Nahan, Himachal Pradesh, and Superintendent of Police,
District Jind [Haryana], for information and necessary
action in terms of this order.
Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Ranjan Sharma)
Judge
10th January, 2025
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