Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 828

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Chet Ram – Petitioner
Versus
State of Himachal Pradesh – Respondent
Cr. M.P. (M) No. 2570 of 2022
Decided On : 23-12-2022

Advocates:
Advocate Appeared:
For the Petitioner: Yashveer Singh Rathore.
For the Respondents: Desh Raj Thakur, Narender Thakur.

Point of Law: Length of custody undergone by the appellant, in Court view the case for bail is made out

Headnote:
Narcotic Drugs and Psychotropic Substances, Act - Section 20 and 37 - Charas’ - Recovered - Charged - Custody - Bail application - Petitioner is facing trial for offences under Section 20 of ND&PS Act in pursuance to challan filed by respondent - Allegation against petitioner is that , at about 8:15 am near Gram Panchayat Gara Parli, he was found carrying a bag in his right hand, from which 5.679 Kgs of ‘Charas’ was recovered - Petitioner has now prayed for grant of bail on ground that his constitutional right of expeditious disposal of trial has been infringed - As per petitioner, he is in custody more than three years now and trial has not concluded, rather, it is progressing at snails pace - In its status report dated , respondent has submitted that PW-1 and PW-2 have now been summoned for examination before learned Special Judge - In considered view of this Court, Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity. (Para 8)
Finding of Court :
In addition, different Co-ordinate Benches of this Court have also followed precedent to grant bail to the accused in ND&PS Act, on ground of prolonged pre-trial incarceration - Reference can be made to order dated , passed in Cr. M.P. (M) No. order dated passed in Cr. M.P. (M) No. and order dated , passed in Cr. M.P. (M) No. - Reverting to facts of the case, petitioner is in custody since and facts suggest that the trial is not likely to be concluded in near future - There is nothing on record to suggest that delay in trial is attributable to petitioner.
Result : Bail petition is allowed

JUDGMENT :

SATYEN VAIDYA, J.

1. Petitioner is an accused in case FIR No. 267/2019, dated 20.11.2019, registered under Section 20 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Bhuntar, District Kullu, H.P. Petitioner is in custody since 20.11.2019.

2. Petitioner is facing trial for offences under Section 20 of ND&PS Act in pursuance to challan filed by respondent. The allegation against petitioner is that on 20.11.2019, at about 8:15 am near Gram Panchayat Gara Parli, he was found carrying a bag in his right hand, from which 5.679 Kgs of ‘Charas’ was recovered.

3. Petitioner has now prayed for grant of bail on the ground that his constitutional right of expeditious disposal of trial has been infringed. As per petitioner, he is in custody more than three years now and the trial has not concluded, rather, it is progressing at snails pace.

4. In its status report dated 07.12.2022, respondent has submitted that PW-1 and PW-2 have now been summoned for 04.03.2023 for examination before learned Special Judge.

5. Learned Additional Advocate General has opposed the prayer of the petitioner, on the ground that Section 37 of ND&PS Act, has application in the facts of the case and merely, on the ground of delay in conclusion of trial, petitioner cannot be released on bail.

6. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

7. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case till date. The question that arises for consideration is, can the provisions of Section 37 of the Act, be construed to have same efficacy, throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?

8. It is submitted by learned counsel for the petitioner that till date only eight witnesses have been examined and ten more witnesses remain to be examined, despite the fact that petitioner is in custody since 20.11.2019. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.

9. Recently, in a number of cases, under-trials for offences involving commercial quantity of contraband under ND&PS Act have been allowed the liberty of bail by Hon’ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.

10. In Mahmood Kurdeya vs. Narcotic Control Bureau, (2022) 3 RCR (Criminal) 906, Hon’ble Supreme Court has held as under:

“6. What persuades us to pass an order in favour of the appellant is the fact that despite the rigors of Section 37 of the said Act, in the present case though charge sheet was filed on 23.09.2018 even the charges have not been framed nor trial has commenced.”

11. In Nitish Adhikary @ Bapan vs. State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022, decided on 01.08.2022, Hon’ble Supreme Court has held as under:

“During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.”

12. In Gopal Krishna Patra @ Gopalrusma vs. Union of India, Cr. Appeal No. 1169 of 2022, decided on 05.08.2022, Hon’ble Supreme Court has held as under:

“The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No. 02/2020 in respect of offences punishable under Sections 8, 20, 27-AA, 28 read with 29 of the Narcotic D

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