Back
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Krishan Chand – Petitioner
Versus
State of Himachal Pradesh – Respondent
Cr. M.P. (M) No. 2837 of 2022
Decided On : 04-01-2023
Narcotic Drugs and Psychotropic Substances, Act, 1985 – Section 20, 37 – Bail application – Charas was recovered - Petitioner is in custody – Instrumental in denial of right of bail – Criminal Appeal – Petitioner is facing trial for offences under Section 20 of ND&PS Act in pursuance to challan filed by respondent – Allegation against petitioner on way leading to Village Bagi Shahri, he was found alongwith his co-accused with a bag in the right hand of accused Chet Ram from which 5.679 Kgs of ‘Charas’ was recovered – Only eight witnesses have been examined and ten more witnesses remain to be examined. [Para 8]
Finding of the Court: Reverting to the facts of case, petitioner is in custody 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 – Co-accused of petitioner has already been ordered to be released on bail, vide order – Keeping in view facts of case and also the above noted precedents, bail petition is allowed and petitioner is ordered to be released on bail in case FIR, registered under Section 20 of ND&PS, Act, at Police Station, District Kullu, H.P. on his furnishing personal bond in the sum with one surety in like amount to satisfaction of learned trial court – This order shall, however, be subject to conditions.
Result: Petition 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 a.m. on way leading to Village Bagi Shahri, he was found alongwith his co-accused Chet Ram and Kaul Ram with a bag in the right hand of accused Chet Ram 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 04.01.2023, 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:
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:
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:
Length of custody undergone by the appellant, in Court view the case for bail is made out
Length of custody undergone by the appellant, in Court view the case for bail is made out
Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of ND&PS Act in perpetuity.
Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of ND&PS Act in perpetuity.
Provision of Section 37 of Act, be construed to have same efficacy throughout pendency of trial, notwithstanding, period of custody of accused, especially, when it is weighed against his fundamental ....
The fundamental right to expeditious trial cannot be diluted by statutory provisions such as Section 37 of the ND&PS Act, especially in cases of prolonged pre-trial incarceration.
Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of ND&Ps Act in perpetuity.
Bail – Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of NDPs Act in perpetuity.
If trials are not concluded in time, injustice wrecked on individual is immeasurable.
If trials are not concluded in time, injustice wrecked on individual is immeasurable.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
