Tilak Raj 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 bail in F.I.R. No.15 of 2021, dated 07.01.2021, registered under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances (hereinafter to be referred as ‘the NDPS’) Act, 1985, at Police Station Sadar Chamba, District Chamba, H.P.

Learned counsel for the petitioner has submitted that the petitioner is innocent and he has been falsely implicated in the case simply because he unfortunately happened to be the pillion rider alongwith the main accused from whom the contraband was actually recovered. He further submitted that the petitioner has no previous criminal history and is in custody for more that two and half years. He stated that the trial also is not proceeding at the desired pace as out of the twenty three prosecution witnesses, as of now statements of only seven witnesses have been recorded. He further informed the Court that now the next date fixed before the learned Special Judge for recoding the statements of three witnesses is 12.09.2023 and as right to fair and speedy trial is the fundamental right of the petitioner, therefore, in the peculiar circumstances the present petition may allowed and the petitioner be ordered to be released on bail.

Opposing the bail petition, learned Deputy Advocate General has argued that taking into consideration the fact that the allegation against the petitioner is that he was caught alongwith the other accused in possession of commercial quantity of contraband and as the release of the petitioner at this stage would be deterrent as far as the fair trial is concerned, because there is each and every possibility that if released on bail, the petitioner may try to win over or influence the prosecution witnesses, the petition deserves to be rejected. Learned Deputy Advocate General further argued that otherwise also as the traps of Section 37 of the NDPS Act come into play in the present case as the contraband is commercial quantity, therefore also, the petition deserves to be dismissed, as the investigation which has been carried out clearly points out towards the involvement of the petitioner in the commission of the offence and prima facie satisfaction as is required under Section 37 of the NDPS Act cannot be recorded by the Court to the effect that the petitioner is not guilty of having committed the alleged offence.

I have heard learned counsel for the parties and have gone through the documents appended with the petition as well as the status report.

It is not in dispute that the petitioner is in custody since 07.01.2021 and the contraband was in fact recovered from the possession of the other co­accused who incidently is stated earlier also to have been involved in the commission of offences punishable under the provisions of the NDPS Act. It is also not in dispute that the petitioner has no criminal history and there is no case registered against him earlier under the provisions of NDPS Act. It is also a matter of record that out of the total twenty three prosecution witnesses named in the case, statements of only seven witnesses have been recorded and the next date which has been given by the learned Special Court for recording the statements of some of the remaining prosecution witnesses is 12.09.2023.

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 two and half 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 is 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 F.I.R. No.15 of 2021, dated 07.01.2021, registered under Sections 20 and 29 of the NDPS Act, at Police Station Sadar Chamba, District Chamba, H.P., subject to his furnishing personal bail in the sum of two lacs with two 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:­

“(a) He 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;

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

(c) 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

(d) He will not leave the territorial jurisdiction of the Trial Court without the leave of the 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 application and learned Trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during trial of the case. It is further clarified that in case the petitioner does not comply with the conditions which have been imposed upon him while granting the present bail, the State shall be at liberty to approach this Court for the cancellation of bail. The petition stands disposed in above terms.