Rashid Khan vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition, filed under Section 439 of the Criminal Procedure Code, the petitioner has prayed for grant of regular bail, in FIR No.191 of 2020, dated 09.12.2020, registered under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances, Act, 1985, (hereinafter to be referred as ‘NDPS Act’ for short) at Police Station Chowari, District Chamba, H.P.

Learned Counsel for the petitioner has submitted that after the lodging of the FIR, the petitioner is in custody since 09.12.2020. He further submitted the Court that the trial is progressing at a very slow pace and there is no likelihood of the same being completed in near future. The Court stands informed that the next date, which has now been fixed by learned Trial Court for recording the statements of remaining prosecution witnesses, is 17.05.2023. The Court also stands informed that the petitioner happens to be the sole bread earner of the family and therefore also, the Court may consider the prayer of the petitioner sympathetically as the petitioner who allegedly was apprehended with 1 kg 269 grams of Charas, is in custody for more than two years now. He further submitted that statements of the prosecution witnesses, which stand recorded till date, if gone through, would demonstrate that none has supported the case of the prosecution and there is each and every likelihood of the petitioner being acquitted on merit, but as completion of the trial is likely to take some time, therefore, it will be in the interest of justice, in case, present petition is allowed and the petitioner is ordered to be released on bail. Learned Counsel further submitted that a sympathetic view be taken as the petitioner happens to be a young boy of 24 years and there is no criminal history of the petitioner being earlier involved in commission of offences punishable under the provisions of the ND&PS Act.

The petition is opposed by learned Additional Advocate General, on the ground that as commercial quantity of the contraband has been recovered from the possession of the petitioner, therefore, as the provisions of Section 37 of the NDPS Act are attracted in the case and the reasons which have been given by learned Counsel for the petitioner, seeking bail of the petitioner have no relevance and the present petition thus deserves to be dismissed. Learned Additional Advocate General has also argued that earlier also the bail petition filed by the petitioner stands dismissed by this Court vide order dated 14.03.2023 and as learned Counsel for the petitioner has not been able to point out any change in the circumstances, therefore also, present petition deserves to be dismissed.

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 case of the prosecution is that the petitioner was found in conscious possession of 1 kg 269 grams of Charas, which is a commercial quantity, while he was apprehended by a patrolling party at around 9:40 p.m., at place Tunuhati Barrier, when he was the occupant of while coloured Alto Car bearing registration No. HP-01C-1539. It is not in dispute that the petitioner is in custody since 09.12.2020 and recording of the statements of the prosecution witnesses is still underway. Though, this court is alive to the fact that earlier also petitions filed by the petitioner have been disposed of by this Court in terms of order dated 05.12.2022 and 14.03.2023, however, as pointed out by learned Counsel for the petitioner that at that stage statements of the prosecution witnesses had not been recorded and as of today, statements of the prosecution witnesses are being recorded.

Besides this, 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 269 grams of Charas, which is slightly higher than intermediate/non-commercial quantity and further taking into consideration the fact that the petitioner happens to be young boy of 24 years, who is in custody for more than two years, this petition is allowed, by ordering his release on bail in FIR No.191 of 2020, dated 09.12.2020, registered under Sections 20, 25 and 29 of the ND&PS Act, at Police Station Chowari, District Chamba, 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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