Rakesh Kumar vs State Of Himachal Pradesh

Ajay Mohan Goel, J

Status report filed. Be taken on record.

By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of bail in FIR No. 52/2020, dated 25.07.2020, registered under Sections 20, 25 & 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) at Police Station Swarghat, District Bilaspur, H.P.

Learned Additional Advocate General has informed the Court that the case is at the stage of conclusion. Now, the matter is listed before the learned Trial Court for recording of the statement of the prosecution on 22.5.2023. Therefore, it would be in the interest of justice in case the present petition is disposed of by directing that the trial be completed as expeditiously as possible.

On the other hand, learned counsel for the petitioner has submitted that as the petitioner is in custody for almost 3 years and taking into consideration the stage of the trial, it will be in the interest of justice in case the petitioner is ordered to be released.

I have heard learned counsel for the parties and have also carefully gone into the averments made in the petition as well as the documents appended therewith and the status report also.

The FIR against the petitioner was lodged at Police Station Swarghat, District Bilaspur under Sections 20, 25 and 29 of the NDPS Act on 25.7.2020. The alleged recovery from the vehicle, in which the petitioner alongwith the co-accused was apprehended, is that of 1 kg 642 grams of charas. It is also admitted position as of today that the statement of all the prosecution witnesses stands recorded except for three. The Court also stands informed that the next date, which has now been fixed by the learned Trial Court for recording the statements of remaining prosecution witnesses, is 22.5.2023. Taking into consideration the fact that the petitioner is in custody since 25.7.2020 and also the quantity of the contraband allegedly recovered from the vehicle in which the petitioner was travelling alongwith other co-accused and further the stage in which the trial is, this Court is of the considered view that it would be in the interest of justice in case the present petition is allowed and the petitioner is ordered to be released on bail.

Hon’ble Supreme Court in Mohd. Muslim Islam @ Hussain Versus State (NCT of Delhi), Criminal Appeal No(s).--- of 2023 [@ Special Leave Petition (CRL.) No.(s).915 of 2023], decided on 28.03.2023, while dealing with the provisions of Section 37 of the NDPS Act has held that a plain and liberal interpretation of the conditions under Section 37 of the NDPS Act (i.e. that Court should be satisfied that the accused is not guilty and would not commit any offence), would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned prevented detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 of the Act 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 enacted under Section 37 of the NDPS Act. Hon’ble Supreme Court has been further pleased to observe in the said judgment that 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 of the Criminal Procedure Code which is applicable to offences under the NDPS Act.

Taking a cue from the said observations made by Hon’ble Supreme Court of India, in the peculiar facts of the present case where the allegation of the prosecution is that the petitioner was apprehended with the contraband, i.e. weighing 1 kg 642 grams of Charas, which is higher than intermediate/non-commercial quantity and further taking into consideration the facts that the petitioner is in custody for more than three years and the trial is at the stage, where the statements of the prosecution witnesses are still being recorded and the remaining prosecution witnesses are now to be recorded on 22.5.2023, on which date also, the statements of said witnesses may be recorded or not and further that thereafter, the accused also has to be given an opportunity to lead his evidence, if he so desires, and hearing of the trial thereof is also likely to take some time, the petition is allowed and the petitioner is ordered to be released on bail in FIR No.52 of 2020, dated 25.7.2020, registered under Sections 20, 25 and 29 of the ND&PS Act, at Police Station Swarghat, District Bilaspur, H.P. on his furnishing personal bond to the tune of Rs.1,00,000/- (Rs. One Lac) with one surety in the like amount, to the satisfaction of the learned CJM/ACJM/JMFC concerned, within a period of two weeks from today, subject to the following conditions:-

i.) Petitioner shall attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

ii.) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

iii) He shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

iv) He shall not leave the territory of the State of Himachal Pradesh without prior permission of the learned trial Court.

It is clarified that findings, which have been returned by this Court while deciding this petition, are only for the purpose of adjudication of the present bail petition and learned Trial Court shall not be influenced, in any manner whatsoever, by any of the findings so returned by this Court in the adjudication of this petition during the course of the trial of the case and the respondent-State shall be at liberty to file an application for cancellation of the bail in case petitioner violates any of the conditions of bail. The petition stands disposed of in the above terms.

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