Varun Bhardwaj vs State of Himachal Pradesh

Ajay Mohan Goel, J

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. 06 of 2020, dated 06.02.2020, registered under Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station State CID, Crime Bharari, District Shimla, H.P.

Learned counsel for the petitioner has submitted that though the allegations of the prosecution are that 384 grams of opium and 1.446 kg of charas was recovered from the possession of the petitioner, but fact of the matter remains that the petitioner continues to be in custody since the date of his arrest i.e. 06.02.2020 and as the trial is not proceeding at desired speed, the petitioner is being made to suffer denying to him right to fair and speedy trial, which is his fundamental right. He further submitted that otherwise also, the petitioner is innocent and not guilty of the offences alleged to have been committed by him, which is evident from the statements of the prosecution witnesses recorded till date. Accordingly, he prayed that the present petition be allowed and the petitioner be ordered to be released on bail on such terms and conditions as the Court deems fit.

Learned Deputy Advocate General has opposed the petition inter alia on the ground that the quantity of recovered contraband is commercial quantity and if released on bail, there is each and every possibility that the petitioner may try to win over the remaining witnesses, which may adversely affect the trial. He also argued that simply because the petitioner is in custody for more than three and half years, this does not confers upon him any right to be released on bail because herein the quantity involved is commercial, therefore, the rigors of Section 37 of the NDPS Act come into play and in the absence of the recording of any satisfaction by the Court that the petitioner is not guilty of the offences alleged to have been committed by him, he cannot be released on bail.

I have heard learned counsel for the parties and I have also gone through the status report as well as the other record made available for perusal of the Court by the learned Deputy Advocate General.

It is a matter of record that the petitioner is in custody for more than three and half years as he was arrested in the present FIR on 06.02.2020. It is also a matter of record that out of total 19 prosecution witnesses named in the case, statement of only seven witnesses have been recorded and now the next date which has been given by the learned Court below for recording the statements of some of the remaining prosecution witnesses is 16.12.2023 and 27.12.2023.

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 three 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 has been in custody for more than three 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. 06 of 2020, dated 06.02.2020, registered under Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station State CID, Crime Bharari, District Shimla, 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.