Himachal Pradesh High CourtDecided On : 3Rd August vs Narcotics Control Bureau on 3 August, 2023Bench: Satyen VaidyaIN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA\n\n                                        Cr.MP(M) No.: 1756 of 2023\n\n\n\n\n                                                                    .Reserved on : 28th July, 2023\n\n\n\n\n\n                                        Decided on : 3rd August, 2023\n    Simranjit Singh                                             ....Petitioner.Versus\n\n    Narcotics Control Bureau, Sub Zone Mandi, District Mandi, H.P....Respondent.Coram\n\n    The Hon'ble Mr. Justice Satyen Vaidya, Judge.\n    Whether approved for reporting?1 No\n\n\n    For the petitioner          :       Mr. Rakesh Kumar Chaudhary,\n                                        Advocate.For the respondent          :       Mr.    Ashwani                 Pathak,    Senior\n                                        Advocate,  with                Mr.    Dev   Raj,\n                                        Advocate.\n\n\n\n\n    Satyen Vaidya, JudgePetitioner is accused in case registered vide\n\n\n\n\n\n    NCB Crime No. 41/2021 dated 13.06.2021 under Sections\n\n    8, 20 and 29 of the Narcotic Drugs and Psychotropic\n\n    Substances Act, 1985 (for short 'the NDPS Act') by the\n\n    Narcotic Control Bureau (for short NCB), Sub Zone, Mandi\n\n    District Mandi H.P.1     Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 03/08/2023 20:48:14 :::CIS22.          Petitioner has approached this Court for grant\n\n    of bail in the above noted case under Section 439 of\n\n\n\n\n                                                            .Cr.P.C. on the grounds that the petitioner is innocent and\n\n\n\n\n\n    has been implicated falsely in the case. As per petitioner,\n\n\n\n\n\n    nothing has been recovered from him or at his instance.Further, the petitioner has sought the bail on the ground\n\n\n\n\n\n    that his right to speedy trial has been violated. Petitioner\n\n    is ready and willing to abide by all conditions as may be\n\n    imposed. Petitioner has undertaken not to threaten, allure\n\n\n    and induce prosecution witnesses. Petitioner alleges to be\n\n    permanent resident of Ward No. 12, Behleen Phatti,\n\n\n    Banwari Garh, District Sangroor, Punjab.3.          On notice, respondent has placed on record\n\n\n\n\n    status report. As per respondent, Intelligence Officer of\n\n\n\n\n\n    NCB at Chandigarh, received a secret information that one\n\n    person namely Simranjeet Singh (petitioner), S/o Sh.Nirmal Singh has purchased Charas in District Kullu and\n\n    will   be   transporting   the       same     to     Chandigarh            on\n\n    13.06.2021. On such secret information, a team was\n\n    constituted by the Zonal Director, NCB, Chandigarh. The\n\n    team of NCB laid a Naka at Pulghrat on 13.06.2021.::: Downloaded on - 03/08/2023 20:48:14 :::CIS3Municipal Councillor of the area Sh. Yog Raj along with\n\n    LHHC     No.235      Smt.   Champa        were       associated           as\n\n\n\n\n                                                          .independent witnesses. At about 5.40 P.M., a Motorcycle\n\n\n\n\n\n    bearing No. PB-13AD-2700 was intercepted. Petitioner\n\n\n\n\n\n    was the rider and Amanpreet Kaur was on the pillion.4.           After   necessary   formalities,       a    search        was\n\n\n\n\n\n    conducted. 526 grams of Charas was recovered from a bag\n\n    being carried by co-accused Amanpreet Kaur on her back\n\n    and 780 grams of Charas was found in another bag tied to\n\n\n    the Motorcycle. Thus, total 1.306 Kgs. of Charas was\n\n    recovered.5.           The bail of the petitioner has been opposed on\n\n    the grounds that he is not entitled to bail having\n\n\n\n\n    committed heinous offence. It has been submitted that\n\n\n\n\n\n    petitioner is disentitled from getting the bail on account of\n\n    the application of rigors ofSection 37of the NDPS Act. It is\n\n\n\n\n\n    further contended that the petitioner on earlier occasion\n\n    had also approached this Court for grant of bail in the\n\n    same case, but had remained unsuccessful. It has been\n\n    pointed out that for the first time, petitioner filed bail\n\n    petition Cr.MP(M) No.2825 of 2022, which was dismissed::: Downloaded on - 03/08/2023 20:48:14 :::CIS4as withdrawn by this Court vide order dated 13.01.2023.6.        I have heard learned counsel for the parties and\n\n\n\n\n                                                       .have also gone through the records of the case carefully.7.        Indisputably, the successive bail application on\n\n\n\n\n\n    behalf of an accused is maintainable only in changed\n\n    circumstances. In the case in hand, the prayer has been\n\n\n\n\n\n    made to release the petitioner on bail on the ground that\n\n    his constitutional right of speedy trial has been violated.Petitioner is in custody for more than two years now and\n\n\n    his trial has not yet concluded. In my considered view, the\n\n    petitioner has made out a case of changed circumstance\n\n\n    and in such background, the present petition is being\n\n    considered.8.        The fetters placed by Section 37 of ND&PS Act,\n\n\n\n\n\n    evidently have been instrumental in denial of right of bail\n\n    to the petitioner in the instant case till date. The question\n\n\n\n\n\n    that arises for consideration is, can the provision ofSection 37of the Act, be construed to have same efficacy\n\n    throughout the pendency of trial, notwithstanding, the\n\n    period of custody of the accused, especially, when it is::: Downloaded on - 03/08/2023 20:48:14 :::CIS5weighed   against          his   fundamental          right            to     have\n\n    expeditious disposal of trial..9.            As is suggested by the contents of status report,\n\n\n\n\n\n    recording of prosecution evidence is still in progress despite\n\n\n\n\n\n    the fact that petitioner is in custody since 13.06.2021. In the\n\n    considered view of this Court, the Constitutional guarantee\n\n\n\n\n\n    of expeditious trial cannot be diluted by applying the rigors\n\n    of Section 37 of ND&Ps Act in perpetuity.10.           Recently, in a number of cases, under-trials for\n\n\n    offences involving commercial quantity of contraband under\n\n    ND&PS Act have been allowed the liberty of bail by Hon'ble\n\n\n    Supreme Court only on the ground that they have been\n\n    incarcerated for prolonged durations.11.           In Mahmood Kurdeya Vs. Narcotic Control Bureau\n\n\n\n\n\n    (2022) 3 RCR (Criminal) 906, Hon'ble Supreme Court has held\n\n    as under: -"6.What persuades us to pass an order in favour of the appellant\n                  is the fact that despite the rigors ofSection 37of the said Act, in\n                  the present case though charge sheet was filed on 23.09.2018\n                  even   the   charges   have   not   been     framed     nor   trial   has\n                  commenced."12.           In Nitish Adhikary @ Bapan Vs.The State of West\n\n    Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022,::: Downloaded on - 03/08/2023 20:48:14 :::CIS6decided on 01.08.2022, Hon'ble Supreme Court has held as\n\n    under:-."During the course of the hearing, we are informed that the\n               petitioner has undergone custody for a period of 01 year and\n               07 months as on 09.06.2022. The trial is at a preliminary\n\n\n\n\n\n               stage, as only one witness has been examined. The petitioner\n               does not have any criminal antecedents.Taking into consideration the period of sentence undergone by\n\n\n\n\n\n               the petitioner and all the attending circumstances but without\n               expressing any views in the merits of the case, we are\n               inclined to grant bail to the petitioner."13.        In Gopal Krishna Patra @ Gopalrusma Vs. Union\n\n    of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022,\n\n    Hon'ble Supreme Court has held as under: -" The appellant is in custody since 18.06.2020 in connection\n               with crime registered as NCB Crime No. 02/2020 in respect\n               of offences punishable underSections 8,20,27-AA,28read\n\n\n\n\n               with 29 of the Narcotic Drugs andPsychotropic Substances\n               Act, 1098.The application seeking relief of bail having been rejected, the\n               instant appeal has been fled.We have heard Mr. Ashok Kumar Panda, learned Senior\n               Advocate in support of the appeal and Mr. Sanjay Jain,\n               learned Additional Solicitor General for the respondent.Considering the fact and circumstances on record and the\n               length of custody undergone by the appellant, in our view the\n               case for bail is made out."14.        In    Chitta Biswas @ Subhas Vs. The State of\n\n    West Bengal, (Criminal Appeal No.(s) 245 of 2020, decided\n\n    on 07.02.2020, it has been held as under:-::: Downloaded on - 03/08/2023 20:48:14 :::CIS7"The appellant was arrested on 21.07.2018 and continues to\n              be custody. It appears that out of 10 witnesses cited to be\n              examined in support of the case of prosecution four witnesses\n              have already been examined in the trial..Without expressing any opinion on the merits or demerits of\n\n\n\n\n\n              the rival submission and considering the facts and\n              circumstances on record, in our view, case for bail is made\n              out."15.       In Abdul Majeed Lone Vs. Union Territory of\n\n    Jammu and Kashmir (Special Leave to Appeal (Cr.L.) No.\n\n    3961 of 2022, decided on 01.08.2022, it has been held as\n\n    under:-r            to\n              "Having regard to the fact that the petitioner is reported to be\n              in jail since 1-3-2020 and has suffered incarceration for over 2\n\n              years and 5 months and there being no likelihood of\n              completion of trial in the near future, which fact cannot be\n              controverted by the learned counsel appearing for the UT, we\n\n\n              are inclined to enlarge the petitioner on bail.".16.       In addition, different Co-ordinate Benches of this\n\n\n\n\n    Court have also followed precedent to grant bail to the\n\n\n\n\n\n    accused in ND&PS Act, on the ground of prolonged pre-trial\n\n    incarceration. Reference can be made to order dated\n\n\n\n\n\n    28.07.2022, passed in Cr.MP(M) No. 1255 of 2022, order\n\n    dated 01.12.2022, passed in Cr.MP(M) No. 2271 of 2022 and\n\n    order dated 04.11.2022, passed in Cr.MP(M) No. 2273 of\n\n    2022.::: Downloaded on - 03/08/2023 20:48:14 :::CIS817.        In Criminal Appeal No. 943 of 2023 titled as\n\n    Mohd Muslim @ Hussain Vs. State (NCT of Delhi), Hon'ble\n\n\n\n\n                                                            .Supreme Court, vide its judgment dated 28.03.2023, has\n\n\n\n\n\n    held as under: -"21. Before parting, it would be important to reflect that\n              laws which impose stringent conditions for grant of bail,\n              may be necessary in public interest; yet, if trials are not\n\n\n\n\n\n              concluded in time, the injustice wrecked on the individual\n              is immeasurable. Jails are overcrowded and their living\n              conditions, more often than not, appalling. According to\n\n              the Union Home Ministry's response to Parliament, the\n\n              National Crime Records Bureau had recorded that as on\n              31 st December 2021, over 5,54,034 prisoners were\n              lodged in jails against total capacity of 4,25,069 lakhs in\n\n\n              the country20. Of these 122,852 were convicts; the rest\n              4,27,165 were under-trials.22. The danger of unjust imprisonment, is that inmates\n              are at risk of "prisonisation" a term described by the\n\n\n\n\n\n              Kerala High Court inA Convict Prisoner v. State21as"a\n              radical transformation" whereby the prisoner:"loses his identity. He is known by a number. He\n                    loses personal possessions. He has no personal\n                    relationships. Psychological problems result from loss\n                    of   freedom,    status,   possessions,       dignity     any\n                    autonomy of personal life. The inmate culture of\n                    prison turns out to be dreadful. The prisoner becomes\n                    hostile   by    ordinary   standards.       Self-perception\n                    changes."::: Downloaded on - 03/08/2023 20:48:14 :::CIS923. There is a further danger of the prisoner turning to\n              crime, "as crime not only turns admirable, but the more\n              professional the crime, more honour is paid to the\n\n\n\n\n                                                            .criminal"22 (also   see    Donald Clemmer's 'The Prison\n\n\n\n\n\n              Community' 20 National Crime Records Bureau, Prison\n              Statistics in India https://ncrb.gov.in/sites/default/files/\n\n\n\n\n\n              PSI- 2021/Executive_ncrb_Summary-2021.pdf 21 1993 Cri\n              LJ 3242 22 Working Papers - Group on Prisons & Borstals -\n              1966 U.K. published in 194023). Incarceration has further\n              deleterious effects - where the accused belongs to the\n\n\n\n\n\n              weakest economic strata: immediate loss of livelihood, and\n              in several cases, scattering of families as well as loss of\n              family bonds and alienation from society. The courts\n\n              therefore, have to be sensitive to these aspects (because in\n\n              the event of an acquittal, the loss to the accused is\n              irreparable), and ensure that trials - especially in cases,\n              where special laws enact stringent provisions, are taken up\n\n\n              and concluded speedily."18.       Recently in Special Leave to Appeal (Crl.) No. 1904\n\n\n\n\n    of 2023, titledSunil Kumar vs. State of Himachal Pradesh,\n\n\n\n\n\n    the Hon'ble Supreme Court has granted the bail to an\n\n\n\n\n\n    accused   charged    with     having      commercial quantity                   of\n\n    contraband in following terms:"Heard the learned counsel for the petitioner and\n              perused the petition papers.It is noted that the petitioner has been in custody\n              for more than one and a half years and the trial is yet\n              to conclude. Earlier, the petitioner had been granted::: Downloaded on - 03/08/2023 20:48:14 :::CIS10interim bail on two occasions and has not misused the\n              liberty of interim bail or violated any of the bail\n              conditions imposed upon him but has thereafter,\n\n\n\n\n                                                           .surrendered back.Therefore, keeping all these aspects in view, the\n              petitioner is ordered to be released on bail subject to\n\n\n\n\n\n              appropriate conditions being imposed by the trial Court\n              including   the   condition    that     the     petitioner      shall\n              diligently participate in the trial.Ordered accordingly.           Petition is accordingly\n              disposed of."19.       Reverting to the facts of the case, the petitioner is\n\n\n    in custody since 13.6.2021 and the facts suggest that the\n\n    trial is not likely to be concluded in near future. There is\n\n\n    nothing on record to suggest that delay in trial is\n\n    attributable to the petitioner. The co-accused in the case\n\n\n\n\n    with identical allegations has already been released on bail.20.       Keeping in view the facts of the case and also\n\n    the above noted precedents, the bail petition is allowed\n\n\n\n\n\n    and petitioner is ordered to be released on bail in case\n\n    registered vide NCB Crime No. 41/2021 dated 13.06.2021\n\n    underSections 8,20and29of the NDPS Act by the\n\n    Narcotic Control Bureau, Sub Zone, Mandi, District Mandi\n\n    H.P., on his furnishing personal bond in the sum of::: Downloaded on - 03/08/2023 20:48:14 :::CIS11Rs.1,00,000/-(Rupees One lacs) with one surety in the like\n\n    amount to the satisfaction of learned trial court. This order\n\n\n\n\n                                                                   .shall, however, be subject to the following conditions: -i)     Petitioner shall regularly attend the trial of the case\n                     before learned Trial Court and shall not cause any\n\n\n\n\n\n                     delay in its conclusion.ii)    Petitioner shall not tamper with the prosecution\n                     evidence, in any manner, whatsoever and shall not\n\n\n\n\n\n                     dissuade any person from speaking the truth in\n                     relation to the facts of the case in hand.iii)   Petitioner shall be liable for immediate arrest in the\n\n                     instant case in the event of petitioner violating the\n\n                     conditions of this bail.(iv)   Petitioner   shall     not   leave       India      without\n                     permission of learned trial Court till    completion       of\n\n\n                     trial.21.              Any expression of opinion herein-above shall\n\n\n\n\n    have no bearing on the merits of the case and shall be\n\n\n\n\n\n    deemed only for the purpose of disposal of this petition.(Satyen Vaidya)\n    3rd August, 2023.                                           Judge\n          (jai)::: Downloaded on - 03/08/2023 20:48:14 :::CIS