Pratap Singh vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail. It has been asserted that FIR No. 35 of 2022, dated 21.3.2022 was registered against the petitioner in Police Station, Karsog, District Mandi, H.P. for the commission of offences punishable under Sections 21, 22 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short ‘ND&PS’ Act). The petitioner is a resident of Tehsil Karsog, District Mandi, H.P. He is a law-abiding citizen. A false complaint was filed against him with the allegations that he was found in possession of 7400 tablets of Tramadol each weighing 100 mg., Alprazolam tablets IP 0.50 mg., NENDIA 480 TABLETS 0.50 MG. Proxymed-spas Capsules and NRx 168 capsules in his shop at Village Bhanthal. The petitioner has no part in the commission of an offence and he was involved falsely. The family of the petitioner is facing a lot of hardship. The petitioner is a heart patient and he had suffered heart attacks twice. The Police took the medical file of the petitioner but they have misplaced the same. The petitioner is in urgent medical need. The investigation is complete and no recovery is to be effected from him. The petitioner had filed a bail application before the learned Special Judge-II, Mandi, Camp at Karsog which was dismissed as withdrawn on 5.7.2022. He filed a bail application [Cr.MP(M) No. 1777 of 2022] before this Court, which was withdrawn on 17.8.2022. The prosecution has cited 25 witnesses. Independent witnesses have turned hostile. The petitioner is ready and willing to abide by the terms and conditions, which may be imposed by the Court. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

A status report was submitted by the Police stating that the Police Party was on patrolling duty on 21.3.2022. Information was received at 7.15 PM that the petitioner was selling intoxicating drugs in his shop and in case of search, a huge quantity of drugs could be recovered. The information was reduced to writing. The search of the shop was conducted in the presence of witnesses. 7400 tablets of Tramadol prolonged-release tablets IP each weighing 100 mg., Alprazolam tablets IP 0.50 mg. and NENDIA 0.50 mg. 480 tablets each weighing 50 mg. Paracetamol, Dicyclomine Hydrochloride and Tramadol Hydrochloride Capsules (a total of 168 capsules) were recovered. The petitioner could not produce any licence/bill/document to possess the drugs. Hence, the police seized the drugs and arrested the petitioner. The inventory was certified by JMFC, Thunag. The investigation was conducted. The result from FSL has been received which mentions that TRAMNAM-100 SR is a sample of Tramadol Tablets, Proxymed Spas is a sample of Tramadol Capsules, and NENDIA-05 is a sample of Alprazolam tablets. The challan was prepared and presented before the Court on 30.3.2022. No other case has been registered against the petitioner. The prosecution has cited 28 witnesses, out of which witnesses at Serial No. 1, 3, 16 and 17 have been examined and witnesses at Serial No. 2, 4, 5, 6 and 7 have been summoned for 13.10.2023. Hence, it was prayed that the present petition be dismissed.

I have heard Mr. Raman Jamalta, learned Counsel for the petitioner and M/s Navlesh Verma, learned Additional Advocate General with R.P. Singh and Prashant Sen, learned Deputy Advocates General for the respondent-State.

Mr. Raman Jamalta, learned Counsel for the petitioner submitted that the petitioner was arrested on 21. 3.2022. His trial is not proceeding expeditiously. More than 1½ years have elapsed since his arrest and only four witnesses were examined by the prosecution. The prosecution has cited 28 witnesses and there is no chance of early disposal of the case. The continued detention of the petitioner in custody will serve no fruitful purpose. The petitioner is a heart patient and requires treatment. Hence, he prayed that the petitioner be released on bail.

Mr. Navlesh Verma, learned Additional Advocate General submitted that the petitioner was found in possession of a commercial quantity of psychotropic substance. The rigours of Section 37 of the ND&PS Act apply to the present case. The petitioner has not shown anything to overcome the hurdles mentioned in section 37. Therefore, he prayed that the petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

It was mentioned in the status report that the petitioner was arrested on 21.3.2022. The challan was prepared against him on 30.5.2022. The prosecution has cited 28 witnesses out of whom only four witnesses have examined. Certified copies of the order sheets show that the charge was framed against the petitioner on 10.11.2022. The matter was listed for the evidence on 9.3.2023, however, the Presiding Officer had relinquished the charge on that day and the witnesses could not be examined. The Presiding Officer joined on 4.4.2023 and the witnesses at Serial No. 8 to 13 were ordered to be summoned for 9.5.2023, on which date, only one witness was examined. No other witness was present. The witnesses at Serial No. 1 to 3 and 17 were summoned for 11.8.2023. Only three witnesses were examined. One witness was not examined by the learned Public Prosecutor as he wanted to examine him after the examination of other witnesses. The case was listed for the examination of the witnesses at Serial No. 2, 4, 5, 6 and 7 on 13.10.2023. An order was passed in the meantime on 20.9.2023 that the matter is to be taken only in the headquarters at Mandi. Hence, a production notice was issued returnable for 6.10.2023.

A perusal of the order sheets shows that the prosecution has not produced the witnesses cited by it despite the directions of the Court. Even one witness present in the Court was not examined by the learned Public Prosecutor with the excuse that he would be examined after the examination of other witnesses. This shows that the prosecution is not interested in concluding the trial expeditiously but is only interested in detaining the petitioner in custody without a trial. It was laid down in Mohd Muslim @ Hussain versus State (NCT of Delhi) AIR 2023 SC 1648 that the right of speedy trial is a constitutional right of an accused. The right of bail is curtailed on the premise that the trial would be concluded expeditiously.

It was observed:-

“13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest - as observed in Vaman Narain Ghiya v. State of Rajasthan, [2008] 17 SCR 369: (2009) 2 SCC 281 ('the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal....'). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3 SCC 569 made observations to this effect. In Shaheen Welfare Association v. Union of India, [1996] 2 SCR 1123: (1996) 2 SCC 616 again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on: a conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods.”

It was held that Section 37 of the ND&PS Act requires the Court to record its satisfaction that the accused might not be guilty of the commission of the offence and he is not likely to commit any offence upon release. A plain reading of these provisions would result in punitive detention. Hence, the Court has to record a prima facie conclusion that the accused is not guilty. It was observed:-

“18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is 'not guilty of such offence ' and that he is not likely to commit any offence while on bail. What is meant by 'not guilty' when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, CrPC) which classifies offences based on their gravity, and instructs that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further, the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, the likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: the likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that the liberty of such citizens has to - in cases when accused of offences enacted under special laws - be balanced against the public interest.

A plain and literal interpretation of the conditions under Section 37 (i.e., that the Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude the grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.

The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik, (2009) 2 SCC 624). Grant of bail on the ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail.”

The Court highlighted the effects of pre-trial detention and the importance of speedy trial as under:

“21. Before parting, it would be important to reflect that laws which impose stringent conditions for the grant of bail, may be necessary in the public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as of 31st December 2021, over 5,54,034 prisoners were lodged in jails against a total capacity of 4,25,069 lakhs in the country[National Crime Records Bureau, Prison Statistics in India https://ncrb. gov. in/sites/default/files/P SI-202 1/Executive ncrb Summary-2021.pdf]. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

The danger of unjust imprisonment, is that inmates are at risk of 'prisonisation' a term described by the Kerala High Court in A Convict Prisoner v. State, 1993 Cri LJ 3242 as a radical transformation ' whereby the prisoner:

'loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes. '

There is a further danger of the prisoner turning to crime, 'as crime not only turns admirable but the more professional the crime, more honour is paid to the criminal'[Working Papers - Group on Prisons & Borstals - 1966 U.K.] (also see Donald Clemmer's 'The Prison Community' published in 1940[Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, 'Donald Clemmer's Concept of Prisonisation', available at: https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobecki _sklad.pdf (accessed on 23rd March 2023).]). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts, therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”

This question was again considered in Rabi Prakash versus State of Odisha 2023 SCC OnLine SC 1109 and it was held that the prolonged imprisonment violates the constitutional right granted under Article 21 of the Constitution. The Court need not form an opinion that there are reasonable grounds for believing that the accused is not guilty in case of prolonged incarceration. It was observed:-

“4. As regards the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

In Raju Ram Vs. State of Bihar 2023 STPL 4250, the prosecution had examined only two witnesses out of eight witnesses. The petitioner had no criminal antecedents and it was held that the period already spent in custody was sufficient to exempt the rigours of Section 37 of the ND&PS Act. It was observed:-

“6. It is true that the trial has commenced and out of 8 witnesses, 2 witnesses have reportedly been examined by the Trial Court. However, the conclusion of the trial will still take some time. The petitioner has no criminal antecedents. The period which the petitioner has already spent in custody is sufficient to exempt the rigours of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.”

This Court discussed the law relating to the release of bail in Rakesh Kumar Vs. State of H.P., Cr.MP(M) No. 1146 of 2023, decided on 29.5.2023 and held that the Court can release a person on bail despite the rigours of Section 37 of the ND&PS Act when the accused was in prolonged custody and the witnesses had turned hostile. It was observed:-

“6. No doubt, rigours of 37 of the Act are attracted in the present case on account of the fact that commercial quantity of contraband came to be recovered from the conscious possession of the bail petitioner, however, bare perusal of aforesaid provision nowhere suggests that this Court is estopped from considering the prayer for grant of bail in the cases involving commercial quantity of contraband, rather in such cases, court after having afforded due opportunity of hearing to public prosecutor can always proceed to grant bail, if it is satisfied that the bail petitioner has been falsely implicated and in the event of his being enlarged on bail he will not indulge in such activities again. Though it has been vehemently argued by the learned Additional Advocate General that there is nothing on record suggestive of the fact that the bail petitioner has been falsely implicated but statements of two independent witnesses associated at the time of recovery raise doubt about the correctness of the story of the prosecution.

Otherwise also, the Question which needs determination in the case at hand is “whether the provisions of Section 37 of the Act can be construed to have the same efficacy throughout the trial notwithstanding the period of custody of the accused, especially, when it is weighed against their fundamental right to have expeditious disposal of trial.” Hon’ble Apex Court as well as this Court in catena of cases have categorically held that speedy trial is a right guaranteed to the accused and violation thereof, if any, amounts to a violation of the fundamental right, especially Article 21 of the Constitution of India.

Hon’ble Apex Court in a case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held the delay in the criminal trial to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

Learned counsel for the petitioner while inviting the attention of this court to the judgment dated 29.3.2023 passed in Petition for Special Leave to Appeal (Crl.) No. 1904 of 2023, Sunil Kumar v. State of Himachal Pradesh, submits that the petition having been filed by the bail petitioner deserves to be allowed on the ground of inordinate delay in the conclusion of the trial. A perusal of the aforesaid judgment reveals that the petitioner was behind bars for more than 1½ years and trial was yet to be concluded and the Hon’ble Apex Court having taken note of the inordinate delay in the conclusion of the trial, proceeded to enlarge the petitioner in that case on bail. Learned counsel also invited the attention of this Court to the judgments dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023, titled Puran Chand v. State of HP and Prem Chand v. State of HP., to state that in similar facts and circumstances, the coordinate Bench of this Court as well as this Court enlarged the accused on bail on the ground of inordinate delay. Having perused aforesaid judgments passed by the coordinate Bench of this Court, this Court finds that in both the cases, the commercial quantity of contraband was recovered from the accused, but yet the court having taken note of the fact that they were behind bars for more than three years, proceeded to enlarge them on bail.

Hon'ble Apex Court having taken note of the inordinate delay in the conclusion of the trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of the trial in near future, subject to certain conditions.

Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, along with four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February 2020 and, thereafter, there was no further progress in the trial.”

Similarly this Court held in Roop Singh Vs. State of H.P. Cr.MP(M) No. 1328 of 2022, decided on 6.9.2022 that prolonged custody of the petitioner entitled him to bail. It was observed:-

“14. Without commenting on the merits of the case, but considering rival contentions of the parties, including submissions made by learned counsel for the parties, and taking into consideration entire facts and circumstances and pronouncement of the Supreme Court, whereby discretion in favour of accused similarly situated like petitioner facing trial for alleged recovery of contraband equivalent as well as more than the quantity alleged to have been recovered from them, have been enlarged on bail, and period of detention and also factors and parameters propounded by the Courts, including Supreme Court, necessary to be considered at the time of adjudication of bail, I find that at this stage, petitioner may be enlarged on bail.”

In the present case, the prosecution has cited 28 witnesses and has only examined four witnesses within 1½ years. The witnesses were not produced before the Court and the summons were not returned. This shows the lackadaisical attitude of the prosecution in conducting the trial and at this pace, the trial is not likely to be concluded soon.

It was held by the Hon’ble Supreme Court in Shailendra Kumar vs. State of Bihar and others (2002) 1 SCC 655 that the Investigating Officer must remain present during the trial and keep the witnesses present. If there is a violation on the part of the witnesses to remain present, the Court has to take proper action including the issuance of bailable/non-bailable warrants as the case may be. It was observed:-

“9. In our view, in a murder trial it is a sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the addl. sessions judge as well as the APP have not taken any interest in the discharge of their duties. It was the duty of the session judge to issue a summons to the investigating officer if he failed to remain present at the time of the trial of the case. The presence of an investigating officer at the time of trial is a must. It is his duty to keep the witnesses present. If there is a failure on the part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch.” (Emphasis supplied)

Therefore, primarily, it is for the Investigating Officer to remain present and produce the witnesses during the Trial. In the present case, this duty is not being discharged by the prosecution. As was laid down by the Hon’ble Supreme Court, the right of speedy trial cannot be violated by allowing the prosecution to prolong the trial and keep the accused in custody. The constitutional right of freedom has to be weighed with the protection of the society and a balance has to be struck by the Court. If the Investigating Agency fails to discharge its duty of concluding the trial expeditiously, the accused gets a right to be released on bail.

In the present case, the petitioner was not found to be involved in the commission of similar offence. This fact was specifically mentioned in the status report. The petitioner stated that he is a heart patient and has annexed the medical record to the bail petition. Detaining the petitioner in custody in such a situation would put his life in danger; hence the petitioner is entitled to be released on bail.

Thus, in view of the binding precedents of the Hon’ble Supreme Court and the precedents of this Court, the petitioner is entitled to be released on bail notwithstanding the application of the rigours of Section 37 of the ND&PS Act to the present case.

Consequently, the present bail petition is allowed. The petitioner is ordered to be released on bail in the sum of ₹2 lacs with two sureties to the like amount to the satisfaction of the learned Trial Court, undertaking to abide by the following terms and conditions:-

(i) The petitioner shall attend the trial on each and every date of hearing and shall not seek any adjournment for examination of the witnesses. He shall not indulge in any other act prejudicial to the fair trial.

(ii) The petitioner shall not intimidate the witnesses nor shall he try to influence them to dissuade them to depose against him or tamper with any other evidence in any manner whatsoever.

(iii) The petitioner shall submit the details of his mobile phone, e-mail ID and other social media accounts to enable the Investigating Agency/Court to summon him by these methods and shall inform the Court/police of any changes in these particulars.

(iv) The petitioner shall not leave the address furnished by him in the bail petition, consecutively for a period of more than seven days without intimating the Court/SHO of Police Station, Karsog of the address of his intending visit.

(v) The petitioner shall not leave India without seeking permission from the Court.

It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

The observation made herein before shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case.

The bail petitioner is permitted to produce a copy of the order downloaded from the High Court Website and the Trial Court shall not insist on a certified copy of the order, however, it may verify the order from the High Court website or otherwise.

A copy of this order be sent to the learned Trial Court and the accused through the Jail Superintendent through FASTER mode.