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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Arjun Singh – Appellant
Versus
State of Himachal Pradesh - Respondent.
Cr.MP(M) No.: 3008 of 2023
Decided on : 05-01-2024
ND&PS Act - Bail Application - Section 20, 25, 29 - Summary of Acts and Sections: The court discussed the application of Section 37 of the ND&PS Act and its impact on the right to bail, citing various precedents where bail was granted due to prolonged pre-trial incarceration. The court emphasized the constitutional guarantee of expeditious trial and held that the rigors of Section 37 cannot dilute this right.
Fact of the Case:
The petitioner, an accused in a case under the ND&PS Act, sought bail due to prolonged pre-trial incarceration. The prosecution alleged illicit trade of 'Charas' and recovery of contraband from the petitioner's vehicle. The petitioner argued that his right to expeditious trial had been infringed.
Finding of the Court:
The court found that the petitioner's right to expeditious trial had been infringed due to prolonged pre-trial incarceration. It emphasized that the rigors of Section 37 of the ND&PS Act cannot dilute the constitutional guarantee of expeditious trial.
Issues: The main issue was whether the petitioner's prolonged pre-trial incarceration warranted the grant of bail despite the provisions of Section 37 of the ND&PS Act.
Ratio Decidendi: The court relied on various precedents where bail was granted to under-trials due to prolonged pre-trial incarceration, emphasizing the need to balance the rigors of bail provisions with the constitutional guarantee of expeditious trial.
Final Decision: The court granted bail to the petitioner, emphasizing that the right to expeditious trial cannot be diluted by the rigors of Section 37 of the ND&PS Act. The bail was subject to certain conditions to ensure the petitioner's compliance with the trial proceedings.
JUDGMENT :
Satyen Vaidya, J.
Petitioner is an accused in case FIR No. 159/2022, dated 18.05.2022, registered under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station Nurpur, District Kangra, H.P. Petitioner is in custody since 18.05.2022.
2. Petitioner is facing trial for offences under Sections 20, 25 and 29 of ND&PS Act in pursuance to challan filed by respondent. The case of the prosecution is that on 17.05.2022, at about 7:10 PM, ASI Virender Kumar Incharge Police Post Gangath alongwith C. Pankaj Kumar was present near Bus Stand Nurpur, when he received secret information to the effect that the petitioner alongwith Chaman Lal were indulging in illicit trade of ‘Charas’ and were coming from the direction of Kangra in vehicle No. HP-40B-5670 with a consignment of ‘Charas’. Since, the information was found to be creditable, report under section 42(2) of NDPS Act was prepared and forwarded to higher officer. More Police personnel were requisitioned. Two independent witnesses were associated.
3. At about 7.55. PM vehicle number HP-40B-5670 came and was stopped near Shiva temple. Petitioner was on the driver seat and Chaman Lal occupies the front passenger seat. On suspicion, the vehicle was searched and on opening the bonnet of the car, 1Kg. 500 Grams Charas/Cannabis was recovered. The case was registered and petitioner alongwith his co-accused were arrested. On completion of investigation, report under Section 173 of Cr.P.C. was submitted on 28.7.2022 in the Court of learned Special Judge-Kangra at Dharmshala.
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 one year and seven months and the trial has not concluded, rather, it is progressing at snail’s pace.
5. It has been revealed from records that out of twenty cited witnesses only five witnesses have been examined till date.
6. 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.
7. I have heard learned counsel for the petitioner as well as learned Additional 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 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.
9. 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 18.5.2022. 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:-
12. In Nitish Adhikary @ Bapan Vs.The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022, decided
The main legal point established in the judgment is that the constitutional guarantee of expeditious trial cannot be diluted by the rigors of bail provisions, as evidenced by the court's grant of bai....
The central legal point established in the judgment is the need to balance the rigors of Section 37 of the ND&PS Act with the constitutional guarantee of expeditious trial, as evidenced by various pr....
If trials are not concluded in time, injustice wrecked on individual is immeasurable.
Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of ND&Ps Act in perpetuity.
If trials are not concluded in time, injustice wrecked on individual is immeasurable.
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.
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.
Fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to petitioner.
Bail – Constitutional guarantee of expeditious trial cannot be diluted by applying rigors of Section 37 of NDPs 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 ....
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