Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 827

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Jeet Ram - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr. MP(M) No. 2657 of 2022
Decided On : 26-12-2022

Advocates:
Advocate Appeared:
For the Petitioner:Mr. Rakesh Kumar Chaudhary, Advocate.
For the Respondent:Mr. Narender Thakur, Deputy Advocate General.

Point of Law: Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of ND&PS Act in perpetuity.

Headnote:
Narcotic Drugs and Psychotropic Substances, Act, 1985 - Sections 8, 20, 27-AA, 28, 29, 37 - Grant of Bail - Trial has been Infringed - Cannabis was Seized - Petitioner has prayed for grant of bail – Offences involving commercial quantity of contraband under ND &PS Act have been allowed liberty of bail by Hon’ble Supreme Court only on ground that they have been incarcerated for prolonged durations - Para 10.
Finding of the Court:
In Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir, it has been held as petitioner is reported to be in jail and has suffered incarceration for over 2 years and 5 months and there being no likelihood of completion of trial in near future, which fact cannot be controverted by learned counsel appearing for UT, Court is inclined to enlarge petitioner on bail - Reverting to facts of case, petitioner is in custody since 06.10.2019 and facts suggest that 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 - Keeping in view facts of case and also above noted precedents, petitioner is ordered to be released on bail.
Result: Petition allowed.

JUDGMENT :

Satyen Vaidya, J.

Petitioner is an accused in case FIR No. 204/2019, dated 29.09.2019, registered under Sections 20 & 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), 1985, at Police Station, Bhuntar, District Kullu, H.P.. Petitioner is in custody since 06.10.2019.

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 a huge quantity of 3 Kg.382 grams of Cannabis (Charas) was seized from personal search of one Joseph Shobal during routine checking in a bus at about 11:20 P.M. on 29.09.2019 at Bajaura District Mandi, H.P. Further investigation revealed that Joseph Shobal was resident of Kerala and had purchased the seized contraband for Rs. 4,80,000/- from bail petitioner through one Mohsin. Contention of respondent is that there was regular telephonic conversations between petitioner Mohsin and Joseph Shobal between 26.09.2019 to 28.09.2019, which sufficiently revealed implication of petitioner in the crime.

3. Previously also petitioner approached this Court more than once for grant of bail, but every time his plea was rejected primarily on the grounds that the rigors of Section 37 of ND&PS Act were applicable and petitioner was involved in another case under the ND&PS Act. The last such order was passed on 09.05.2022 by this Court in Cr.MP(M) No. 811/2022. Though, the present one is another successive bail application, yet the same cannot be rejected on the basis of previously passed orders as it is being considered on the ground of violation of constitutional guarantee available to the petitioner with respect to speedy trial.

4. 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 for more than three years now and the trial has not concluded, rather, it is progressing at snail’s pace.

5. It has been disclosed on behalf of the petitioner that the prosecution has cited twenty witnesses in support of its case. Twelve witnesses have already been examined. Two witnesses have been given up. Six witnesses remain to be examined.

6. Learned Deputy 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.

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

8. 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?

9. As is suggested by the contents of status prosecution witnesses are still being examined despite the fact that petitioner is in custody since 06.10.2019. 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.

10. 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.

11. 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