Sonu @ Rafakat vs State Of Himachal Pradesh

Ajay Mohan Goel, J

Status report has been filed, which is perused and ordered to be taken on record.

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.179 of 2020, dated 03.11.2020, registered under Sections 22 of the Narcotic Drugs and Psychotropic Substances, Act, 1985, (hereinafter to be referred as ‘NDPS Act’ for short) at Police Station Poanta Sahib, District Sirmaur, H.P.

The case of the prosecution is that from the search of the Motorcycle bearing Registration No. UP-11AP-9389, being driven by the petitioner on 02.11.2020, at around 8:30 p.m. at Behral Barrier/Checkpost, near Poanta Sahib, one green coloured carry bag, containing five boxes of Parvion Spas and six open packets of the same were recovered, i.e. 1060 capsules of contraband in total. The quantity of contraband is stated to be commercial in nature.

Learned Counsel for the petitioner has submitted that the petitioner is innocent and he has been falsely implicated by the Police. He further submitted that the petitioner has no previous criminal history, and otherwise also, he is in custody since 2nd November, 2020, and his custody is not serving any purpose, as at this stage, neither any recovery etc. is to be effected from the petitioner nor the pace at which the trial is taking place demonstrates that there is a possibility of the trial being completed within some reasonable time. Learned Counsel further apprised the Court that in all 25 witnesses have been cited by the prosecution and the date for recording of statements of the prosecution witnesses was firstly fixed on 10.06.2022 for 05.01.2023 but till date not even a single prosecution witness has been examined by the prosecution. Accordingly, he has submitted that as right to free, fair and speedy trial is the constitutional right of the petitioner and as delay in trial amounts to prolonging of incarnation, therefore, this petition be allowed in the peculiar facts of the case and the petitioner be ordered to be released on bail.

The petition is opposed by learned Additional Advocate General inter alia on the ground that recovery of the contraband from the possession of the petitioner is commercial in nature and further if released on bail, there is each and every possibility that he may try to win over or influence the witnesses and thus may create impediments in holding of the fair trial. Learned Additional Advocate General also argued that the petitioner happens to be a permanent resident of village Mirzapur, Post Office Raipur, Tehsil Behat, District Sarahanpur, U.P. and if released on bail, there is each and every possibility that he may jump the bail and may not be available for the purpose of trial. Accordingly, he submitted that the present petition deserves to be dismissed.

In rebuttal, learned Counsel for the petitioner submits that if released on bail, the petitioner will abide by all the terms and conditions, which may be imposed upon him and shall furnish two local sureties to the satisfaction of the Court.

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. I have also perused the certified copies of zimni orders produced by learned Counsel for the petitioner, which are ordered to be taken on record.

The background in which the petitioner has been arrested, has already been mentioned by me hereinabove, which is not being repeated for the sake of brevity. It is also not in dispute that the petitioner is in custody since 2nd November, 2020 and that he has no previous criminal history. It is also not in dispute that out of 25 witnesses cited by the prosecution, till date, not even a single witnesses has been examined by the prosecution. A perusal of the copies of zimni orders produced by learned Counsel for the petitioner demonstrates that on 20.06.2022, the case was ordered to be listed for recording of the statements of few prosecution witnesses for 4th and 5th January, 2023. On 4th of January, 2023, no witness was present as summons were not issued and the matter was thereafter listed for the said purpose on 14.03.2023. Thereafter, the case was listed before learned Special Judge on 14.03.2023, 25.04.2023 and 19.07.2023 but the outcome was the same, i.e. no prosecution witness was examined.

Hon’ble Supreme Court in Special Leave to Appeal (Crl.) No(s).4169 of 2023 , titled as Rabi Prakash vs. The State of Odisha has been pleased to observe in a case under the provisions of NDPS Act, wherein, the contraband involved was of commercial quantity, that three and half years spent in custody amounts to prolonged incarceration and this 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.

Whether or not the petitioner is guilty of the offences alleged to have been committed by him, of course, is a matter of trial but taking into consideration the fact that the petitioner has been in custody for more than 4 years, this Court is of the considered view that this prolonged incarceration, in terms of the law declared by the Hon’ble Supreme Court of India, referred to hereinabove, militates against the most precious fundamental right guaranteed under the Constitution of India i.e. the fundamental right of protection of life and personal liberty envisaged under Article 21 of the Constitution of India and the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.

Accordingly, this petition is allowed primarily on the ground that the petitioner has been in custody for more than two and half years and there is no possibility of the trial being completed in near future. The petitioner is ordered to be released on bail in FIR No. 179 of 2020, dated 03.11.2020, registered under Sections 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Poanta Sahib, District Sirmaur, H.P., subject to his furnishing personal bail bond in the sum of 1.00 lac with two local sureties each in the like amount to the satisfaction of concerned Chief Judicial Magistrate/Additional Chief Judicial Magistrate/ Judicial Magistrate First Class. The petitioner shall also abide by 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 the 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. Downloaded copy of this order from the website of this Court shall be valid for compliance.