Narender Vs State of Hp

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.: 1002 of 2024 Reserved on : 17.05.2024 Decided on : 21.05.2024 Narender. .…Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram

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The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?¹ No

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For the petitioner : Ms. Rajni Gandhi, Advocate, vice Mr.Rajiv Rai, Advocate. For the respondent : Mr. R.S. Verma, Addl. Advocate General.

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Satyen Vaidya, Judge

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Petitioner is facing trial for offence under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), before learned Special Judge, Bilaspur, H.P. He has been charged for being in

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1 Whether reporters of the local papers may be allowed to see the judgment?

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possession of commercial quantity of Charas (1 Kg 54 Grams).

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Petitioner was booked for above offence, vide FIR No. 118 of 2022, dated 25.05.2022, registered at Police Station Sadar, District Bilaspur, H.P. The allegation against petitioner is that he alongwith two others, namely, Veer Nath and Jubbu Raj, were apprehended in vehicle No. HP-34E-0370, near Veterinary Chowk, Bilaspur, H.P., by police party, at about 7:40 PM, on 25.05.2022. On checking of the vehicle 1Kg 54 Grams of Charas was recovered.

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Petitioner has now prayed for grant of bail on the ground that his constitutional right of expeditious disposal of trial has been infringed. As per petitioner, he is in custody for two years and the trial has not concluded, rather, it is progressing at snail’s pace.

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It has been revealed from records that

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out of twenty cited witnesses, only twelve witnesses have been examined till date. The next dates for

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recording of statements of prosecution witnesses are 20.06.2024 & 21.06.2024 and one witness has died which means that the conclusion of trial is not going to be completed in reasonably short time. 6. Learned Additional Advocate General has opposed the prayer of the petitioner, on the ground that Section 37 of ND&PS Act, has application in the facts of the case and merely, on the ground of delay in conclusion of trial, petitioner cannot be released on bail.

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I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

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The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case till date. The question that arises for consideration is, can the provision of Section 37 of

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the Act, be construed to have same efficacy

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throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial.

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As is suggested by the contents of status report, recording of prosecution evidence is still in progress despite the fact that petitioner is in custody since 25.05.2022. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&Ps Act in perpetuity. In Rabi Prakash Vs. The State of Odisha, (2023) SCC Online SC 1109, Special Leave to Appeal (Crl.) No.(s) 4169 of 2023, decided on 13.07.2023, Hon’ble Supreme Court has

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observed as under:-

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“4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1^st condition stands complied with. So far as the 2^nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the

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same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, 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.”

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Recently, in a number of cases,

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under-trials for offences involving commercial quantity of contraband under ND&PS Act have been allowed the liberty of bail by Hon’ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.

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In Mahmood Kurdeya Vs. Narcotic

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Control Bureau (2022) 3 RCR (Criminal) 906 , Hon’ble

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Supreme Court has held as under:-

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“6.What persuades us to pass an order in favour of the appellant is the fact that despite the rigors of Section 37 of the said Act, in the present case though charge sheet was filed on 23.09.2018 even the charges have not been framed nor trial has commenced.”

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12. I n Nitish Adhikary @ Bapan Vs. The

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State of West Bengal (Special Leave to Appeal

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(Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022,

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Hon’ble Supreme Court has held as under:-

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“During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

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Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.”

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13. I n Gopal Krishna Patra @ Gopalrusma

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Vs. Union of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022, Hon’ble Supreme Court has held as under:-

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“ The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No. 02/2020 in respect of offences punishable under Sections 8,20,27-AA, 28 read with 29 of the Narcotic Drugs and Psychotropic Substances Act, 1098.

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The application seeking relief of bail having been rejected, the instant appeal has been fled.

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We have heard Mr. Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr. Sanjay Jain, learned Additional Solicitor General for the respondent.

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Considering the fact and circumstances on record and the length of custody undergone by the

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appellant, in our view the case for bail is made out .”

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14. In Chitta Biswas @ Subhas Vs. The

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State of West Bengal, (Criminal Appeal No.(s) 245

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of 2020, decided on 07.02.2020, it has been held as

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under:-

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“The appellant was arrested on 21.07.2018 and continues to be custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.

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Without expressing any opinion on the merits or demerits of the rival submission and considering the facts and circumstances on record, in our view, case for bail is made out.”

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15. In Abdul Majeed Lone Vs. Union

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Territory of Jammu and Kashmir( Special Leave

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to Appeal (Cr.L.) No. 3961 of 2022 , decided on 01.08.2022, it has been held as under:-

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“Having regard to the fact that the petitioner is reported to be in jail since 1-3-2020 and has suffered incarceration for over 2 years and 5 months and there being no likelihood of completion of trial in the near future, which fact cannot be controverted by the learned counsel appearing for the UT, we are inclined to enlarge the petitioner on bail.”.

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16. In addition, different Co-ordinate

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Benches of this Court have also followed precedent to grant bail to the accused in ND&PS Act, on the ground of prolonged pre-trial incarceration. Reference can be made to order dated 28.07.2022, passed in Cr.MP(M) No. 1255 of 2022, order dated 01.12.2022, passed in Cr.MP(M) No. 2271 of 2022 and order dated 04.11.2022, passed in Cr.MP(M) No. 2273 of 2022.

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17. Recently in Criminal Appeal No. 943 of 2023 titled as Mohd Muslim @ Hussain Vs. State (NCT of Delhi ) , Hon’ble Supreme Court, vide its judgment dated 28.03.2023, has held as under:-

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“21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over

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5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country20. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

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22. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court in A Convict Prisoner v. State21 as“a radical transformation” whereby the prisoner:

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“loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.”

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23. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal”22 (also see Donald Clemmer’s ‘The Prison Community’ 20 National Crime Records Bureau, Prison Statistics in India https://ncrb.gov.in/sites/default/files/ PSI- 2021/Executive_ncrb_Summary-2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of

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livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”

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18. Reverting to the facts of the case, the

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petitioner is in custody since 25.05.2022 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that delay in trial is attributable to the petitioner. The independent witnesses cited by the prosecution have already been examined. No criminal history has been attributed to the petitioner. He is permanent resident of District Kullu, Himachal Pradesh.

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19. One of the co-accused namely Veer Nath with identical allegation has already been released on bail by this Court vide order dated 29.04.2024

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passed in Cr.MP(M) No. 672 of 2024.

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20. Keeping in view the facts of the case and

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also the above noted precedents, the bail petition is allowed a nd petitioner is ordered to be released on bail in case FIR No. 118 of 2022, dated 25.05.2022, registered under Sections 20, 25 and 29 of ND&PS Act, at Police Station Sadar, District Bilaspur, H.P., on his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court. This order shall, however, be subject to the following conditions:-

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i) Petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.

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ii) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand.

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iii) Petitioner shall be liable for immediate arrest in the instant case in the event of petitioner violating the conditions of this bail.

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(iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial.

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Any expression of opinion herein-above

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shall have no bearing on the merits of the case

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and shall be deemed only for the purpose of

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disposal of this petition.

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21^st May 2024 (Satyen Vaidya) ( sushma ) Judge

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Digitally signed by GANGA RAM SHARMA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL GANGA PRADESH SHIMLA, Phone=53d793b89e8f7ed22df51a99c485c30e69 ef93029aa64cf7f7477f3ea023b5fe, PostalCode=171001, S=Himachal Pradesh, RAM SERIALNUMBER=8d8cfd67531d5f7cf98b98478 b7c873db362a2c10726a8f44f89d8ea8ad55e1d, CN=GANGA RAM SHARMA Reason: I am approving this document SHARMA Location: Date: 2024-05-21 14:54:55

Narender v. State of Hp

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Narender v. State of Hp

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