Sharafat Ali vs State Of H.P

Satyen Vaidya, J

By way of instant petition, the petitioner has prayed for grant of bail in case 112 of 2021 dated 16.7.2021, registered at Police Station, Paonta Sahib, District Sirmour, H.P. under Sections 22 and 29 of the Narcotic Drugs & Psychotropic Substances Act, (for short “the Act”) and Sections 192, 196 and 181 of the Motor Vehicles Act.

The case of prosecution against the petitioner is that on 16.7.2021, a police patrol was stationed near Walia Patrol Pump, Batapul, within the jurisdiction of Police Station, Paonta Sahib, District Sirmour, H.P. It received secret information that the petitioner and another person were travelling on a motorcycle having no registration number from Hathani Kund towards Behral and were carrying huge quantity of intoxicating capsules. Report under Section 42 (2) of NDPS Act was prepared and sent to Divisional Police Officer. A “Nakka” was laid near place known as Lal Dhank. In the meanwhile, motorcycle bearing No. HP17B-1806 came from the side of Yamunanagar and was occupied by two persons namely Sajid Ali and Sitar Ali. On request both of them agreed to associate with the police as witnesses.

At about 6.50 A.M., a motorcycle came from the side of Hathni Kund. On noticing the presence of police, the rider of motorcycle tried to abscond but was apprehended by the police. The motorcycle apprehended by the police was occupied by two persons and a bag was found lying in between the two. The rider disclosed his name as Sharafat Ali (petitioner) and the person on pillion was co-accused named Mohammad Salman. On checking the bag carried on the motorcycle, commercial quantity of Narcotic Drugs Psychotropic Substance was recovered. Petitioner and his co-accused were arrested. On investigation sufficient material was found against the petitioner and report under Section 173 Cr.P.C. was filed.

The petitioner is undergoing trial before learned Special Judge, Paonta Sahib, District Sirmour, H.P.

Learned counsel for the petitioner has submitted that the petitioner is entitled for grant of bail on the ground that his right to speedy trial has been violated. It is submitted that the petitioner is in custody since 16.7.2021 and the trial has not yet begun. The learned Special Judge has fixed the case for recording of statements of three prosecution witnesses on 14.9.2023.

On the other hand, learned Additional Advocate General has opposed the prayer for bail on the ground that the petitioner is accused of a very serious and heinous crime. The bar created by Section 37 of the NDPS Act prohibits for grant of bail to the petitioner.

I have heard learned counsel for the parties and have also gone through the record carefully.

Petitioner was arrested on 16.7.2021 and his custody is still continuing. This Court has been informed that still many witnesses remain to be examined. In this view of the matter, the trial of the petitioner is not likely to conclude within short time, as the petitioner after conclusion of prosecution evidence, may opt to lead defence evidence.

Indisputably, accused has constitutional right for speedy trial. Weighed against such constitutional right, it cannot be said that the rigors of Section 37 of the Act can have efficacy in perpetuate and more particularly in case where trial is not concluded within a reasonable period. There is nothing on record to suggest that the delay in trial has been caused for any reason attributable to the petitioner.

In order to secure the presence of petitioner for the purpose of trial, appropriate conditions can be imposed against him. Petitioner is permanent resident of Village Memoodpur Nagli, Post Office Rajpur, Tehsil Behat, District Saharanpur, U.P. There is no immediate apprehension of his absconding from the course of justice.

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.

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.”

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 into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.”

In Gopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022, Hon’ble Supreme Court has held as under:-

“ The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No. 02/2020 in respect of offences punishable under Sections 8,20,27-AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1098.

The application seeking relief of bail having been rejected, the instant appeal has been fled.

We have heard Mr. Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr. Sanjay Jain, learned Additional Solicitor General for the respondent.

Considering the fact and circumstances on record and the length of custody undergone by the appellant, in our view the case for bail is made out.”

In Chitta Biswas @ Subhas Vs. The State of West Bengal, (Criminal Appeal No.(s) 245 of 2020, decided on 07.02.2020, it has been held as under:-

“The appellant was arrested on 21.07.2018 and continues to be custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.

Without expressing any opinion on the merits or demerits of the rival submission and considering the facts and circumstances on record, in our view, case for bail is made out.”

In Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir( Special Leave to Appeal (Cr.L.) No. 3961 of 2022, decided on 01.08.2022, it has been held as under:-

“Having regard to the fact that the petitioner is reported to be in jail since 1-3-2020 and has suffered incarceration for over 2 years and 5 months and there being no likelihood of completion of trial in the near future, which fact cannot be controverted by the learned counsel appearing for the UT, we are inclined to enlarge the petitioner on bail.”.

In addition, different Co-ordinate Benches of this Court have also followed precedent to grant bail to the accused in ND&PS Act, on the ground of prolonged pre-trial incarceration. Reference can be made to order dated 28.07.2022, passed in Cr.MP(M) No. 1255 of 2022, order dated 01.12.2022, passed in Cr.MP(M) No. 2271 of 2022 and order dated 04.11.2022, passed in Cr.MP(M) No. 2273 of 2022.

In Criminal Appeal No. 943 of 2023 titled as Mohd Muslim @ Hussain Vs. State (NCT of Delhi ), Hon’ble Supreme Court, vide its judgment dated 28.03.2023, has held as under:-

“21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in 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 on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. 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. State21 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”22 (also see Donald Clemmer’s ‘The Prison Community’ 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/ PSI- 2021/Executive_ncrb_Summary-2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). 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.”

Recently in Special Leave to Appeal (Crl.) No. 1904 of 2023, titled Sunil Kumar vs. State of Himachal Pradesh, the Hon’ble Supreme Court has granted the bail to an accused charged with having commercial quantity of contraband in following terms:-

“Heard the learned counsel for the petitioner and perused the petition papers.

It is noted that the petitioner has been in custody for more than one and a half years and the trial is yet to conclude. Earlier, the petitioner had been granted interim bail on two occasions and has not misused the liberty of interim bail or violated any of the bail conditions imposed upon him but has thereafter, surrendered back.

Therefore, keeping all these aspects in view, the petitioner is ordered to be released on bail subject to appropriate conditions being imposed by the trial Court including the condition that the petitioner shall diligently participate in the trial.

Ordered accordingly. Petition is accordingly disposed of.”

Reverting to the facts of the case, the petitioner is in custody since 16.7.2021 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.

Keeping in view the peculiar facts and circumstances of the case, petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 112 of 2021 dated 16.7.2021, registered at Police Station, Paonta Sahib, District Sirmour, H.P. under Sections 22 & 29 of the Narcotic Drugs & Psychotropic Substances Act and Sections 192, 196 and 181 of the Motor Vehicles Act. on his furnishing personal bond in the sum of Rs. 1,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court. This order shall be subject to following conditions: -

i) That the petitioner shall appear before learned trial Court on each and every date and shall not delay the trial.

ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

iii) That breach of any of the bail condition by the petitioner shall entail cancellation of the bail.

iv) That the petitioner shall not leave India without prior permission of the Court.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.