Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 268

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SATYEN VAIDYA, J.
Madan Lal – Appellant
Versus
State of Himachal Pradesh – Respondent
Cr.MP(M) No.: 948 of 2023
Decided on : 22-05-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. V.S. Chauhan, Sr. Advocate with Mr.Ajay Kashyap, Advocate.
For the Respondent:Mr. Raj Kumar Negi, Additional Advocate General

Point of Law: Courts have to be sensitive to these aspects and ensure that trials especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.

Headnote:
Narcotic Drugs and Psychotropic Substances, Act, 1985 - Section 20, 37 - Grant of bail - Recovery 2Kg 45 grams of ‘Cannabis’ - 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 one year and five months and the trial has not even begun - The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court. (Para 22).
Finding of the Court :
Petitioner is in custody and the 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 the petitioner - Bail petition is allowed and petitioner is ordered to be released on bail in case FIR, registered under Section 20 of the ND&PS Act, at Police Station Baijnath, District Kangra, H.P., on his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned trial court.
Result: Bail petition is allowed

JUDGMENT :

Satyen Vaidya, J.

Petitioner is an accused in case FIR No. 211/2021, dated 18.12.2021, registered under Section 20 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Baijnath, District Kangra, H.P. Petitioner is in custody since 18.12.2021.

2. Petitioner is facing trial for offences under Section 20 of ND&PS Act in pursuance to challan filed by respondent. The case of the prosecution is that on 17.12.2021, at about 8:25 pm, at place Baijnath, when police officials were on patrol duty, a secret information was received that one person namely Madan Lal @ Maddu is standing near Hanuman Mandir (Panjala) holding black coloured bag, in which huge quantity of Cannabis is alleged to be kept. At the sight of police party on the spot, he tried to ran away from the spot but he was immediately apprehended. Thereafter, local Panchayat Pradhan and Ward Member were called on the spot and search of the bag was carried in their presence. On search, 2Kg 45 grams of ‘Cannabis’ were recovered from the bag carried by him. Thereafter, the case was registered and petitioner was formally arrested. Petitioner is in custody since then.

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 for one year and five months and the trial has not even begun.

4. Learned counsel for the petitioner has submitted that since 30.06.2022, the case is being listed for Consideration on Charge, but till today no charges have been framed and the case has further been listed for Consideration on Charge on 24.05.2023.

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 provision 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. As is suggested by the contents of status report, recording of prosecution evidence is still in progress despite the fact that petitioner is in custody since 18.12.2021. 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.The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 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 in