Himachal Pradesh High CourtKaram Singh vs State Of H.P on 11 October, 2023Bench: Mamidanna Satya Rao, Jyotsna Rewal DuaIN THE HIGH COURT OF HIMACHAL PRADESH,\n                       SHIMLA\n                                     Cr.M.P.(M) No.2153/2023\n                                      Decided on: 11.10.2023\n\n\n\n\n                                                                           .Karam Singh                                  ......Petitioner\n\n\n\n\n\n                              Versus\n    State of H.P.                                 ......Respondent..........................................................................................Coram\n    Ms. Justice Jyotsna Rewal Dua, Judge.Whether approved for reporting?1\n    For the petitioner :                      Mr. N.K. Thakur, Sr. Advocate with\n                                              Mr. Divya Raj Singh, Advocate.For the respondent :r              to  Mr. Pranay Pratap Singh, Additional\n                                              Advocate General with Mr. Arsh\n                                              Rattan & Mr. Sidharth Jalta,\n                                              Deputy Advocates General.\n\n                                              ASI Vinod Kumar, present in\n                                              person.\n\n    Jyotsna Rewal Dua, JThe petitioner seeks regular bail in FIR No. 348/2019,\n\n    dated 19.12.2019, registered under Section 20 of the Narcotics Drugs\n\n\n\n\n    andPsychotropic Substances Act(in short 'NDPS Act') at Police\n\n\n\n\n\n    Station, Sadar Chamba, District Chamba, H.P. The petitioner is\n\n\n\n\n\n    accused of possessing 8.212 kgs of cannabis in the said FIR.2.                 Respondent has filed the status report and also\n\n    produced the record.3.                 According to the respondent, on 19.12.2019, a police\n\n    party was on routine patrol duty within the area of its jurisdiction; At\n\n    around 3.25 P.M., the police personnel noticed a pedestrian carrying a1Whether reporters of the local papers may be allowed to see the judgment?    yes::: Downloaded on - 11/10/2023 20:36:32 :::CIS2backpack; He seemingly appeared perplexed; On seeing the police\n\n    party, he retraced his steps & started going backwards at fast pace;.Getting suspicious, the police personnel nabbed him; Independent\n\n\n\n\n\n    witnesses were associated; Search of the backpack held by that\n\n    person (bail petitioner) was carried out as per law; The search\n\n\n\n\n\n    resulted in recovery of 8.212 kgs of cannabis; Consequently, the FIR\n\n    in question was registered and the petitioner was arrested on\n\n\n\n\n\n    19.12.2019. On completion of investigation, a police report underSection 173of the Criminal Procedure Code was presented on\n\n    18.03.2020.4.            Learned Senior Counsel for the petitioner submitted that\n\n    the story propounded by the prosecution does not inspire confidence.Independent witnesses associated by the investigating agency &\n\n    examined during trial, have not supported the prosecution case. It was\n\n\n\n\n    further highlighted that the petitioner has already spent about 3 years\n\n\n\n\n\n    and 10 months in custody. The prosecution has still not been able to\n\n\n\n\n\n    lead its entire evidence. The trial is delayed. Therefore, on this ground\n\n    alone, the petitioner deserves to be enlarged on bail.Learned Additional Advocate General opposed the grant\n\n    of bail and submitted that the petitioner is accused of possessing\n\n    8.212 kgs of cannabis. Being a case of recovery of commercial\n\n    quantity of the contraband, provisions ofSection 37of the NDPS Act\n\n    are attracted. The petitioner has not been able to satisfy the::: Downloaded on - 11/10/2023 20:36:32 :::CIS3conditions imposed therein, therefore, he is not entitled to bail. It was\n\n    further submitted that the instant is not a case of delay in trial..Prosecution has been leading its evidence. As of now, the prosecution\n\n\n\n\n\n    has examined 14 witnesses; 2 witnesses have been given up; Only 6\n\n    witnesses remain to be examined. Since the Trial is nearing\n\n\n\n\n\n    completion, therefore, the petitioner does not deserve to be enlarged\n\n    on bail.5.           Observations:-5(i).        Since quantity of the contraband recovered in the FIR is\n\n    commercial, therefore,Section 37of the NDPS Act comes into play.In order to avail bail, the petitioner has to satisfy\n\n    following twin conditions imposed inSection 37of the NDPS Act:-"(i) Court should be satisfied that there are reasonable grounds for\n                 believing that the petitioner is not guilty of such offence; and(ii) Petitioner is not likely to commit any offence while on bail."5(ii)        Hon'ble Apex Court in (2020) 12 SCC 122, titled State\n\n    of Kerala and others Versus Rajesh and others, after considering\n\n\n\n\n\n    various pronouncements held that the expression 'reasonable\n\n    grounds' used inSection 37of the NDPS Act means something more\n\n    than prima-facie grounds. It contemplates substantial probable\n\n    causes for believing that the accused is not guilty of alleged offence.It would be appropriate to extract relevant paras from the judgment:-"19. The scheme ofSection 37reveals that the exercise of power\n                 to grant bail is not only subject to the limitations contained under::: Downloaded on - 11/10/2023 20:36:32 :::CIS4Section 439of the Cr.PC, but is also subject to the limitation placed\n                 bySection 37which commences with non- obstante clause. The\n                 operative part of the said section is in the negative form prescribing\n\n\n\n\n                                                                      .the enlargement of bail to any person accused of commission of an\n\n\n\n\n\n                 offence under the Act, unless twin conditions are satisfied. The first\n                 condition is that the prosecution must be given an opportunity to\n                 oppose the application; and the second, is that the Court must be\n\n\n\n\n\n                 satisfied that there are reasonable grounds for believing that he is\n                 not guilty of such offence. If either of these two conditions is not\n                 satisfied, the ban for granting bail operates.20. The expression "reasonable grounds" means something more\n\n\n\n\n\n                 than prima facie grounds. It contemplates substantial probable\n                 causes for believing that the accused is not guilty of the alleged\n                 offence. The reasonable belief contemplated in the provision\n\n                 requires existence of such facts and circumstances as are\n\n                 sufficient in themselves to justify satisfaction that the accused is\n                 6not guilty of the alleged offence. In the case on hand, the High\n                 Court seems to have completely overlooked the underlying object\n                 ofSection 37that in addition to the limitations provided under theCr.PC, or any other law for the time being in force, regulating the\n                 grant of bail, its liberal approach in the matter of bail under theNDPS Actis indeed uncalled for."5(iii)       Present is a case of recovery of 8.212 kgs of cannabis\n\n\n\n\n\n    from the petitioner. The quantity recovered from the petitioner is not\n\n\n\n\n\n    just commercial but is quite huge at that, however, the fact remains\n\n    that the petitioner was arrested on 19.12.2019. He has by now\n\n    completed 2 months short of 4 years in custody. The respondent has\n\n    not indicated any previous criminal history of the petitioner in the\n\n    status report.5(iv)        AIR 2023 SC 1648 (Mohd Muslim @ Hussain Vs.\n\n    State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein::: Downloaded on - 11/10/2023 20:36:32 :::CIS5facing charge underSection 29of the Act and suffering incarceration\n\n    for over seven years was granted bail on account of delay in trial..Hon'ble Court, inter-alia, reiterated that when stringent provisions are\n\n\n\n\n\n    enacted, curtailing the provisions of bail and restraining judicial\n\n    discretion, it is on the basis that investigation and trials would be\n\n\n\n\n\n    concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of\n\n    India V. K.A. Najeeb) and (2022) 6 SLR 382 (Vijay Madan Lal\n\n\n\n\n\n    Chaudhary Vs Union of India) were also observed wherein it was\n\n    concluded that statutory restrictions like "section 43-D(5) of UAPA\n\n    cannot fetter a constitutional Court's ability to grant bail on ground of\n\n    violation of fundamental right" ..... "If the Parliament provides for\n\n    stringent provision of no bail unless the stringent conditions are\n\n\n\n    fulfilled, it is the bounden duty of the State to ensure that such trials\n\n    get precedence and are concluded within a reasonable time at least\n\n\n\n\n    before the accused undergoes detention for a period extending up to\n\n\n\n\n\n    one and half of the maximum period of imprisonment specified for the\n\n\n\n\n\n    concerned offence by law. (2022) 10 SCC 51 (Satender Kumar\n\n    Antil Vs. CBI) was also considered, where prolonged incarceration\n\n    and inordinate delay engaged the attention of Court vis-à-vis several\n\n    enactments includingSection 37of NDPS Act. In Mohd. Muslim's\n\n    case (supra), it was held as under with reference to expression "not\n\n    guilty of such offence":-::: Downloaded on - 11/10/2023 20:36:32 :::CIS6"18.    The conditions which courts have to be cognizant of are\n        that there are reasonable grounds for believing that the accused is\n        "not guilty of such offence" and that he is not likely to commit any\n\n\n\n\n                                                           .offence while on bail. What is meant by "not guilty" when all the\n\n\n\n\n\n        evidence is not before the court? It can only be a 18 As per the\n        counteraffidavit dated 21.02.2023 filed by the respondent-state\n        before this court. prima facie determination. That places the court's\n\n\n\n\n\n        discretion within a very narrow margin. Given the mandate of the\n        general law on bails (Sections 436,437and439,Cr.PC) which\n        classify offences based on their gravity, and instruct that certain\n        serious crimes have to be dealt with differently while considering\n\n\n\n\n\n        bail applications, the additional condition that the court should be\n        satisfied that the accused (who is in law presumed to be innocent)\n        is not guilty, has to be interpreted reasonably. Further the\n\n        classification of offences underSpecial Acts (NDPS Act, etc.),\n\n        which apply over and above the ordinary bail conditions required to\n        be assessed by courts, require that the court records its\n        satisfaction that the accused might not be guilty of the offence and\n        that upon release, they are not likely to commit any offence. These\n\n\n\n        two conditions have the effect of overshadowing other conditions.\n        In cases where bail is sought, the court assesses the material on\n\n\n\n\n        record such as the nature of the offence, likelihood of the accused\n        cooperating with the investigation, not fleeing from justice: even in\n\n\n\n\n\n        serious offences like murder, kidnapping, rape, etc. On the other\n        hand, the court in these cases under such special Acts, have to\n        address itself principally on two facts: likely guilt of the accused\n\n\n\n\n\n        and the likelihood of them not committing any offence upon\n        release. This court has generally upheld such conditions on the\n        ground that liberty of such citizens have to - in cases when\n        accused of offences enacted under special laws - be balanced\n        against the public interest.19.     A plain and literal interpretation of the conditions underSection 37(i.e., that Court should be satisfied that the accused is\n        not guilty and would not commit any offence) would effectively\n        exclude grant of bail altogether, resulting in punitive detention and\n        unsanctioned preventive detention as well. Therefore, the only::: Downloaded on - 11/10/2023 20:36:32 :::CIS7manner in which such special conditions as enacted underSection\n                37can be considered within constitutional parameters is where the\n                court is reasonably satisfied on a prima facie look at the material\n\n\n\n\n                                                                      .on record (whenever the bail application is made) that the accused\n\n\n\n\n\n                is not guilty. Any other interpretation, would result in complete\n                denial of the bail to a person accused of offences such as those\n                enacted underSection 37of the NDPS Act.20.     The standard to be considered therefore, is one, where the\n                court would look at the material in a broad manner, and reasonably\n                see whether the accused's guilt may be proved. The judgments of\n                this court have, therefore, emphasized that the satisfaction which\n\n\n\n\n\n                courts are expected to record, i.e., that the accused may not be\n                guilty, is only prima facie, based on a reasonable reading, which\n                does not call for meticulous examination of the materials collected\n\n                during investigation (as held inUnion of India v. Rattan Malik19).Grant of bail on ground of undue delay in trial, cannot be said to be\n                fettered bySection 37of the Act, given the imperative ofSection\n                436Awhich is applicable to offences under theNDPS Acttoo (ref.\n                Satender Kumar Antil supra). Having regard to these factors the\n\n\n\n                court is of the opinion that in the facts of this case, the appellant\n                deserves to be enlarged on bail."5(v)        While deciding Special Leave to Appeal (Crl.) No(s).4169/2023 vide judgment dated 13.07.2023 (Rabi Prakash Vs. The\n\n    State of Odisha), the Hon'ble Apex Court held that prolonged\n\n\n\n\n\n    incarceration,    generally   militates    against        the     most      precious\n\n    fundamental right guaranteed underArticle 21of the Constitution and\n\n    in such a situation, the conditional liberty must override the statutory\n\n    embargo created underSection 37(1)(b)(ii)of the NDPS Act.5(vi)       The FIR in question was registered on 19.12.2019 and\n\n    the trial has still not been concluded. Vide order dated 06.09.2023,::: Downloaded on - 11/10/2023 20:36:32 :::CIS8the respondent was directed to file an affidavit detailing therein the\n\n    witnesses examined by the prosecution as on date, the dates of their\n\n\n\n\n                                                                 .examination and the reason as to why till date, the prosecution had\n\n\n\n\n\n    not been able to conclude the trial. In the affidavit filed by the\n\n    Superintendent of Police, Chamba, District Chamba, the prime\n\n\n\n\n\n    reason for delaying the trial was put on Covid-19 pandemic. Some of\n\n    the zimni orders placed on record prima-facie give impression that\n\n\n\n\n\n    the prosecution witnesses were though served at times but did not\n\n    remain present in the Court, rather applications were moved for\n\n    exempting them from appearing in the Court. According to the status\n\n    report and as submitted by learned Additional Advocate General, the\n\n    prosecution even now has to examine 6 more witnesses. Considering\n\n\n\n    the fact that FIR in question pertains to the year 2019 and also the\n\n    fact that the final report was presented as far back as on 18.03.2020,\n\n\n\n\n    the pace of the trial is apparently very slow. At this pace, the trial will\n\n\n\n\n\n    still take long time to conclude. Learned counsel for the petitioner has\n\n\n\n\n\n    also highlighted that the independent witnesses did not support the\n\n    prosecution    case.   Taking     into   consideration       the    facts      and\n\n    circumstances of the case in the backdrop of law laid down in\n\n    Mohammad Muslim's and Rabi Prakash's cases, supra and the\n\n    period spent by the petitioner in custody coupled with the fact that\n\n    trial of the case will take long time to conclude, the petitioner, at this\n\n    stage, has made out a case for his enlargement on regular bail.::: Downloaded on - 11/10/2023 20:36:32 :::CIS9Petitioner is in custody ever since 19.12.2019 & has completed\n\n    almost three years & ten months as an under trial prisoner. Status\n\n\n\n\n                                                                    .report does not indicate any previous criminal history of the petitioner,\n\n\n\n\n\n    therefore, it can be reasonably believed that the petitioner will not\n\n    indulge himself in similar offence in future.In view of all the aforesaid reasons, the present petition\n\n    is allowed. Petitioner is ordered to be released on bail in the\n\n\n\n\n\n    aforesaid FIR on his furnishing personal bond in the sum of\n\n    Rs.1,00,000/- (Rupees One Lakh only) with one local surety in the\n\n    like amount to the satisfaction of the learned Trial Court having\n\n    jurisdiction over the Police Station concerned, subject to the following\n\n    conditions:-(i)      Petitioner is directed to join the investigation of the\n                   case as and when called for by the Investigating Officer\n\n\n\n\n                   in accordance with law. He shall fully cooperate the\n\n\n\n\n\n                   Investigating Officer and will appear before him in the\n                   concerned police station as and when called in\n                   accordance with law.(ii).    Petitioner shall not tamper with the evidence or\n                   hamper the investigation in any manner whatsoever.(iii).   Petitioner will not leave India without prior\n                   permission of the Court.(iv). Petitioner shall not make any inducement, threat or\n                   promise, directly or indirectly, to the Investigating Officer\n                   or any person acquainted with the facts of the case to::: Downloaded on - 11/10/2023 20:36:32 :::CIS10dissuade him/her from disclosing such facts to the Court\n                or any Police Officer.(v).    Petitioner shall attend the trial on every hearing,\n\n\n\n\n                                                               .unless exempted in accordance with law.(vi). Petitioner shall inform the Station House Officer of\n                the concerned police station about his place of\n\n\n\n\n\n                residence during bail and trial. Any change in the same\n                shall also be communicated within two weeks thereafter.\n                Petitioner shall furnish details of his Aadhar Card,\n\n\n\n\n\n                Telephone Number, E-mail, PAN Card, Bank Account\n                Number, if any.(vii)   It is made clear that in case petitioner is arraigned\n\n                as an accused, in future, in any FIR underNDPS Act,\n\n                then his bail is liable to be cancelled. It is open for the\n                Investigating Agency to move appropriate application in\n                that regard. This shall also be considered as a negative\n\n\n\n                factor for consideration of his future bail application, if\n                any.In case of violation of any of the terms & conditions of\n\n\n\n\n\n    the bail, respondent-State shall be at liberty to move appropriate\n\n    application for cancellation of the bail. It is made clear that\n\n\n\n\n\n    observations made above are only for the purpose of adjudication of\n\n    instant bail petition and shall not be construed as an opinion on the\n\n    merits of the matter. Any observation hereinabove shall not be taken\n\n    as an expression on merits of the case and learned Trial Court shall\n\n    decide the matter uninfluenced by any of observations made\n\n    hereinabove.::: Downloaded on - 11/10/2023 20:36:32 :::CIS11With the aforesaid observations, the present petition\n\n    stands disposed of, so also the pending miscellaneous applications,\n\n\n\n\n                                                            .if any.Jyotsna Rewal Dua\n\n\n\n\n\n                                                Judge\n    11th October 2023(Rohit)\n\n\n\n\n                    r          to::: Downloaded on - 11/10/2023 20:36:32 :::CIS