1. Bail petitioner [Om Prakash], who is in custody since 05.05.2023 has come up before this Court, seeking regular bail, under Section 483 of the Bhartiya Nagrik Suraksha Sahinta, hereinafter (hereinafter referred to as BNSS), originating from the FIR No.57 of 2023 dated 05.05.2023, registered at Police Station Hatli, District Mandi, [H.P.], under Sections 15, 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act).

FACTUAL MATRIX IN BAIL PETITION:

2. Case as set up by Mr. Rakesh Kumar Chaudhary and Mr. Panku Chaudhary, Learned Counsel (s) is that the petitioner has been falsely implicated and entire story has been fabricated and concocted. It is averred that bail petitioner is in detention, for the last more than one year and eight months now. It is averred that the Respondent intends to examine 25 PWs but only 4 witnesses have been examined on as on day. It is averred that despite the rigors of Section 37 (1) (b) of NDPS Act, petitioner cannot be made to undergo prolonged incarceration, which is violative of Article 21 of the Constitution of India when the trial is likely to take considerable time for its conclusion. It is averred that the bail petitioner has no previous criminal history. It is averred that the inventory has been illegally prepared. It is further averred that the factum of recovery is un-true, having variations as mentioned in RFSL Report. It is further averred that right of speedy trial has been denied to the bail petitioner. It is averred that bail petitioner is a sole bread earner in the family and has dependency of father and mother also. It is averred that due to prolonged incarceration, the bail petitioner as well as family members have suffered mental pain and agony. It is averred that there are no chances of bail petitioner absconding from the Courts of justice. Bail petitioner has furnished the undertaking that he shall not cause any inducement, threat or promise to any person or persons acquainted with the facts of the case. It is averred that the petitioner shall not leave country without permission of this Court.

In above backdrop, the instant petition has been filed by the bail petitioner, through his wife, Roshani Devi, with the prayer for granting bail.

STAND OF STATE AUTHORITIES IN STATUS REPORT:

3. Pursuant to the issuance of notice on 13.09.2024, the State Authorities have furnished the Status Report dated 26.09.2024, on Instructions of SHO, Police Station, Hatli, District Mandi [HP].

3(i). Perusal of the Status Report, indicates that while the police party was on patrolling duty on 05.05.2023 and headed by ASI Jagesh Kumar, they received an information at about 01:20 p.m. that accused-bail petitioner has kept the contraband in his shop, house and cow-shed and in case, the raid was conducted the contraband may be recovered. Based on this information, the policy party, after associating the independent witnesses searched the shop and thereafter searched his house and then the cow shed in the presence of witnesses.

3(ii). Status Report indicates that on searching the first floor of his house, the police recovered the contraband kept in red plastic box, which turned out to be 7.5 gms. of Opium. Likewise, another green bag was searched by police which came out to be Cannabis [Charas] weighing 140 gms. Status Report indicates that the police searched cow shed, wherein, a brown powder, which was poppy straw [chura- post-bhukki] was found and a Home Guard personnel, who was accompanying the police party was sent to bring a weighing machine, which was brought from Dhrub Verma, a hardware shopkeeper and the poppy straw was weighed in presence of witness, which came out to be 54.760 Kgs. Status Report indicates that currency notes amounting to Rs. 2,08,600/- were recovered from a carry bag in bed box in his house. and after the completing all the codal formalities, rukka was sent and FIR was registered against the bail petitioner.

3(iii). Pursuant to registration of FIR, the petitioner was arrested on the same day i.e. on 05.05.2023 and bail petitioner was made to undergo medical examination in Civil Hospital, Baldwara, District Mandi [HP]. Status Report indicates that an inventory was prepared under Section 52-A of NDPS Act by ACJM, Sarkaghat on 06.05.2023 and on 08.05.2023, the recovered contraband was sent to SFSL Junga, for analysis, which contained 7.5 gms. of Opium [Afeem] and 140 gms. of Cannabis [charas] and 54.760 Kgs. of poppy straw [churapost-bhukki]. Status report indicates that statements of witnesses were recorded under Section 161 Cr.P.C. It is averred that the SFSL report analyzed and confirmed samples of opium [mark-3], cannabis [mark-2] and poppy straw also. Status report spells out past criminal antecedents that the petitioner was involved in three criminal cases, out of which two pending cases relate to NDPS and in one case the petitioner stands acquitted by the Court.

3(iv). Status Report indicates that Investigation is complete and out of total 25 PWs, only 4 PWs have been examined by Learned Trial Court .

In this background, Status Report, has been filed by the State Authorities, with the prayer for dismissing the bail petition.

4. Heard Mr. Rakesh Kumar Chaudhary, Learned Counsel for the bail petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General, for the respondent-State.

STATUTORY PROVISIONS:

5. Before dealing with the claim for bail, it is necessary to have a recap of statutory provisions of Sections 15, 18 and 20 of the NDPS Act, which reads as under:-

“15. Punishment for contravention in relation to poppy straw.—Whoever, in contravention of any provisions of this Act or any rule or order made or condition of a licence granted thereunder, produces, possesses, transports, imports inter-State, exports inter-State, sells, purchases, uses or omits to warehouse poppy straw or removes or does any act in respect of warehoused poppy straw shall be punishable ,—

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

18. Punishment for contravention in relation to opium poppy and opium.—Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, cultivates the opium poppy or produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses opium shall be punishable,—

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 2 [one year], or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees;

(c) in any other case, with rigorous imprisonment which may extend to ten years and with fine which may extend to one lakh rupees.]

20. Punishment for contravention in relation to cannabis plant and cannabis-

Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,-

(a) cultivates any cannabis plant; or

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter- State or uses cannabis, shall be punishable,—

(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) where such contravention relates to sub-clause (b),—

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

MANDATE OF LAW:

6. Notably, the claim of the suspect-accused for regular bail is to be examined/tested in terms of the parameters prescribed in Code of Criminal Procedure {now BNSS} and also the broad para-meters mandated by the Hon’ble Supreme Court for regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496; reiterated in the case of P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, that bail is to be granted where the allegation is frivolous or groundless and incase neither any prima facie case nor reasonable grounds exists to believe or point towards the accusation. However, depending upon the facts of each case, the bail can be refused in case, the prima facie case or reasonable grounds exits and offence is serious, severity of punishment, reasonable apprehension of fleeing away from the investigation and the trial, and Character, including past antecedents, behavior, means, position and standing of the accused; likelihood of offence being repeated; reasonable apprehension of witnesses being influenced and danger of justice being thwarted by grant of bail etc; and then in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01; CBI versus Santosh Karnani (2023) 6 SCALE 250; have been reiterated by the Honble Supreme Court in State of Haryana versus Dharamraj, 2023 SCC Online SC 1085, as under:

“(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) Character, behaviour, means, position and standing of the accused;

(vi) Likelihood of the offence being repeated;

(vii) Reasonable apprehension of the witnesses being influenced and

(viii). Danger, of course, of justice being thwarted by grant of bail.”

6(i). In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power to grant or refuse bail is an extraordinary power, which has to be sparingly exercised subject to the anvil of the time tested parameters and restrictions imposed in law. It is trite law that while considering prayer for bail {pre-arrest bail or regular bail], the factum of prolonged pre-conviction incarceration and the right of speedy trial has to be taken into account, in the background of the fact as to whether delay in trial was attributable to an accused or not. Another added factor and not the sole factor of past criminal antecedents; and the factum as to whether an accused has misused concession-liberty granted earlier. While considering the prayer for bail, the balance has to be carved out between the liberty of an accused vis-à-vis the societal interests, including danger of justice being thwarted in case the bail is granted.

6(ii). This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No. 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, the Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of accused, the circumstances which are peculiar to accused, reasonable possibility of securing the presence of accused during trial, reasonable apprehension of witnesses being tampered with and the larger public/state interests. It is in this background, that the claim for bail is to be examined by a Court without delving into the evidence on merits but by forming a prima-facie opinion on totality of facts in light of broad-parameters referred to above.

ANLYSIS: CLAIM FOR BAIL IN INSTANT CASE:

7. While examining the claim for bail in instant case, this Court is conscious of the fact that, once the petitioner has been implicated with commercial quantity of contraband i.e. [poppy straw- churapost-bhukki] weighing 54.760 Kgs., therefore, in normal parlance, the rigors of Section 37 (1) (b) of NDPS Act are to be satisfied, before acceding to claim for bail, in terms of the mandate of law, laid down by the Hon’ble Supreme Court in Narcotics Control Bureau vs Mohit Aggarwal AIR 2022 SC 3444, followed in Union of India vs Ajay Kumar Singh @ Pappu, SLP (Criminal) No.2351 of 2023, has been reiterated by Hon’ble Supreme Court in State by the Inspector of Police vs B. Ramu, SLP (Criminal) No.8137 of 2022 decided on 12.02.2024.

8. In the aforesaid background, this Court proceeds to examine the claim of the bail petitioner [Om Prakash], for bail, in view of the statutory mandate of Section 37 (1) (b) of NDPS Act and on other grounds carved by way of exceptions to the rigors of Section 37 of NDPS Act, in terms of the mandate of law of the Hon’ble Supreme Court, hereinbelow.

[A]. CLAIM FOR BAIL UNDER SECTION 37(1) (b) OF NDPS ACT:

9. Learned Counsel for bail petitioner, during the course of arguments, submits that recovery of [poppy straw-churapost-bhukki] weighing 54.760 Kgs. from cow-shed cannot form the basis for inferring the accusation and guilt against the bail petitioner when, the cow-shed did not belong to the petitioner.

Moreover, the deposition of PW-5 {HHC Vijay Kumar} made during trial [{on 2.1.2025} that no official was associated by police to ascertain the ownership and possession of the aforesaid cow-shed. material exists with the police that the cow-shed belongs to petitioner. PW-5 has further testified that alleged cow-shed was unlocked when, the police reached the spot. PW-5 deposed that the aforesaid cow-shed is located across the road and was accessible to by public. Even, the evidence available on record, as on day, at this stage, makes the prosecution story highly improbable for the reason, that on one hand PW-5 deposed that Investigating Offer associated Independent Witnesses, Vyasa Pradhan and Roop Lal, Ward Member who reached the spot but on the other hand, PW-6 {C Jagdish} deposed that Investigating Offer reached the spot at 1.35 and no Independent witness had reached the spot at that time, which makes the prosecution story highly improbable, at this stage and therefore, in these circumstances, neither any accusation nor any guilty could be inferred against bail petitioner, at this stage.

9(i). Status Report filed by State Authorities do not spell out any material to show that the bail petitioner has resorted to any activities, so as to invoke the provisions of Sections 15, 18 and 20 of NDPS Act against the bail petitioner. In these circumstances, the bail petitioner appears to be not guilty, at this stage, and therefore, the bail petitioner deserves to be extended the benefit of bail.

[B]. NOTHING ADVERSARIAL REGARDING REPITITION OF OFFENCE AFTER BAIL:

10. Status Reports filed by State Authorities have not placed any cogent and convincing material on record revealing any apprehension of repetition of offence after being released on bail. However, still this Court, safeguards the interests of the State by imposing stringent bail conditions in later part of this bail order.

Taking into account the entirety of the facts and circumstances, including the Status Report this Court is of the considered view, that there are no reasonable grounds to believe that the bail petitioner is guilty and nothing exists that the petitioner is likely to repeat the offence after release on bail and, therefore, even by applying the twin principles in Section 37(1) (b) of the NDPS Act, the bail petitioner [Om Prakash] is entitled to be enlarged on bail.

[C]. BAIL ON OTHER EXCEPTIONAL GROUNDS & CIRCUMSTANCES:

11. Notwithstanding, the discussion with respect to claim for bail under Section 37 (1) (b) of NDPS Act [supra], this Court proceeds to examine the claim of the petitioner, in view of the exceptional circumstances as carved out by the mandate of law enunciated by the Honble Supreme Court as detailed hereinunder, entitling the petitioner to be enlarged on bail, for the following reasons:-

11(i). In the instant case, FIR was registered on 05.05.2023 and the petitioner is in custody for more than one year and eight months now. After the completion of Investigation, the Challan-Police Report dated 30.06.2023 has been filed and charges have been framed and out of 25 PWs, only 4 PWs have been examined by Learned Special Judge, Mandi.

11(ii). While dealing with claim for bail, in case of an accused who suffered incarceration for more than one year and eight months, coupled with the fact that there is no much progress in the trial and such trail was to take considerable time, the Hon’ble Supreme Court in Mukesh Kumar versus State of Rajasthan and another, 2023 SCC OnLine SC 2025, granted bail to the accused therein, in the following terms:-

“2. The petitioner is accused of giving one blow on the head of the deceased with a danda (Bamboo). It may also be mentioned that occurrence took place on 08-06-2020 and the deceased succumbed to his injuries on 12-06-2020.

5. After cancellation of bail by the High Court, the petitioner has again surrendered on 16-11-2022 and is in custody.

7. It may be seen that there are cross-versions and both sides suffered injuries. The question as to who was the aggressor will depend upon the appreciation of evidence and will be decided by the Trial Court at an appropriate stage. It is not expedient or desirable for this Court to express any opinion in relation thereto at this stage.

8. Suffice to say that the petitioner has been in custody for more than 14 months, the crucial witnesses have since been examined and there is no likelihood of tampering with the evidence. Even otherwise also, the witnesses are close family members of both sides, hence there is no likelihood of winning over the witnesses.

9. Since conclusion of trial will take considerable time, we deem it appropriate to release the petitioner on bail.

11. Consequently, without expressing any views on the merits of the case, the petitioner is directed to be released on bail, subject to his furnishing bail bonds to the satisfaction of the Trial Court.

12. The petitioner and his family members as well as Respondent No. 2 and his family members will ensure that no untoward incident takes place again.”

PROLONGED INCARCERATION AND INFRINGMENT OF PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA:

12. While reiterating the principle that bail is a rule and jail is an exception and no accused can be deprived of personal liberty on mere accusation and an accused is to be treated as innocent in the eyes of law, the Hon’ble Supreme Court has outlined the object of bail in Guddan alias Roop Narayan versus State of Rajasthan, 2023 SCC OnLine SC 1242, in the following terms:-

“11. In the case of Sanjay Chandra V. Central Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under:

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

25. The provisions of Cr PC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.

27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

12. Further, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:

"We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs.2 lakhs If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.

Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge- sheeted by the police."

REFORMATIVE APPROACH IN BAIL:

13. While dealing with the concept of bail and personal liberty of an accused under Article 21 of the Constitution of India, the Hon’ble Supreme Court in Criminal Appeal No. 2787 of 2024, titled as Javed Gulam Nabi Shaikh Versus State of Maharashtra and Another, as under:-

“18 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article

21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

20. We may hasten to add that the petitioner is still an accused; not a convict. The over- arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

21 We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.

22 In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is set aside.”

BAIL NOT TO BE WITHHELD BY WAY OF PENALTY: ARTICLE 21 OF CONSTITUTION OF INDIA:

14. While dealing with a matter relating to prolonged incarceration and the right to speedy trial and right of liberty to be sacrosanct right and while deprecating that the bail is not to be withheld as punishment so as to operate de hors the principle that bail is rule and jail is an exception, the Hon’ble Supreme Court, in Manish Sisodia vs Directorate of Enforcement, SLP (Criminal) No.8781 of 2024, decided on 09.08.2024, has held as under :-

“49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.

50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.

52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus:

“10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

“What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:

“I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial””

53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well- settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.

55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.

56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State.

57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant.”

14(i). While adjudicating the claim for bail, even under Special Enactments, like PMLA [akin to NDPS Act], the Hon’ble Apex Court in Criminal Appeal No. of 2024 [Arising out of SLP (Criminal) No. 10778 of 2024], titled as Kalvakuntla Kavitha Versus Directorate of Enforcement and connected matter has mandated that fundamental right of liberty provided under Article 21 of the Constitution of India is superior to the statutory restrictions, in the following terms:-

“13. We had also reiterated the well-established principle that “bail is the rule and refusal is an exception”. We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions.”

RIGOURS IN SPECIAL ENACTMENTS [SECTION 37 OF NDPS] TO GIVE WAY FOR BAIL-PROLONGED INCARCERATION AND COMPLETION OF TRIAL TO TAKE CONSIDERABLE TIME:

15. While dealing with the claim for bail under Special Enactments and rigors of Section 45 (1) (ii) of MPLA and proviso to Section 43-D (5) of the Unlawful Activities [Prevention] Act, 1967 and Section 37 of NDPS Act, the Hon’ble Supreme Court in Criminal Appeal No.4011 of 2024, in re: V. Senthil Balaji Versus The Deputy Director, Directorate of Enforcement, has mandated that rigors in Special Enactments, including Section 37 of NDPS Act, will melt down when, there is no likelihood of the trial being completed in a reasonable time and in view of prolonged incarceration, so as to prevent deprivation of curtailment of personal liberty and right to speedy trial in terms of Article 21 of Constitution of India, in the following terms:-

“24. There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail. By way of illustration, we may refer to Section 45(1)(ii) of PMLA, proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). The provisions regarding bail in some of such statutes start with a non obstante clause for overriding the provisions of Sections 437 to 439 of the CrPC. The legislature has done so to secure the object of making the penal provisions in such enactments. For example, the PMLA provides for Section 45(1)(ii) as money laundering poses a serious threat not only to the country's financial system but also to its integrity and sovereignty.

25. Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well settled principle of our criminal jurisprudence that “bail is the rule, and jail is the exception.” These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time.

25. Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well settled principle of our criminal jurisprudence that “bail is the rule, and jail is the exception.” These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time.

26. There are a series of decisions of this Court starting from the decision in the case of K.A. Najeeb, which hold that such stringent provisions for the grant of bail do not take away the power of Constitutional Courts to grant bail on the grounds of violation of Part III of the Constitution of India. We have already referred to paragraph 17 of the said decision, which lays down that the rigours of such provisions will melt down where there is no likelihood of trial being completed in a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. One of the reasons is that if, because of such provisions, incarceration of an under-trial accused is continued for an unreasonably long time, the provisions may be exposed to the vice of being violative of Article 21 of the Constitution of India.

27. Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act. When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary.

29. As stated earlier, the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial.

31. Therefore, the appeal is allowed, and the appellant shall be enlarged on bail till the final disposal of CC No. 9 of 2023 pending before the Principal Session Judge, Chennai …..”

15(i). While reiterating the grant of bail, despite statutory embargoes in Special Enactments, Hon’ble Supreme Court in Criminal Appeal No.5266 of 2024 (Arising out of SLP (CRL.) No. 13870 of 2024, titled as Partha Chatterjee Versus Directorate of Enforcement, decided on 13.12.2024, 2024 SCC Online SC 3729, has been reiterated, by treating the right to life and liberty under Article 21 of the Constitution of India to be of paramount importance and action of prolonging the incarceration so as to make such incarceration punitive has been deprecated by granting bail, in the following terms:-

“13. We have considered the rival submissions and carefully examined the material on record. At the outset, it is worth reiterating that this Court, through a catena of decisions, has consistently emphasized that prolonged incarceration of an accused awaiting trial unjustly deprives them of their right to personal liberty. Even statutory embargoes on the grant of bail must yield when weighed against the paramount importance of the right to life and liberty under Article 21 of the Constitution, particularly in cases where such incarceration extends over an unreasonably long period without conclusion of trial.

17. We, however, cannot be oblivious to the settled principles that a suspect cannot be held in custody indefinitely and that undertrial incarceration should not amount to punitive detention. The Court would, nevertheless, ensure that affluent or influential accused do not obstruct the ongoing investigation, tamper with evidence, or influence witnesses, namely, actions that undermine the fundamental doctrine of a fair trial.

18. Striking a balance between these considerations and without expressing any opinion on the merits of the allegations, we deem it appropriate to dispose of this appeal with the following directions:

f. The Petitioner shall thereafter be released on bail on 01.02.2025, subject to his furnishing bail bonds to the satisfaction of the Trial Court; ”

Keeping in view the factual matrix that no reasonable grounds exist against the bail petitioner, as referred to above, coupled with the fact the bail petitioner has suffered incarceration for more than one year and eight months [since 05.05.2023] and even trial is likely to take considerable time for the reason, that out of total 25 PWs, only 4 PWs have been examined as yet, and therefore, further detention shall certainly amount to depriving and curtailing the personal liberty of the petitioner on mere accusation or conjectures or surmises, which are yet to be tested, examined and proved during the trial. Detention of the petitioner can neither be punitive nor preventative, so as to make the petitioner to taste imprisonment as a lesson. Denial of bail shall certainly violates the principle that “bail is rule and jail is an exception”. Even, the State Authorities, have failed to ensure speedy trial and still considerable time is likely to be taken for conclusion of trial, then, in view of mandate of law in the cases of Guddan alias Roop Narayan, Javed Gulam Nabi Shaikh, Manish Sisodia, Kalvakuntla Kavitha, Senthil Balaji and Partha Chatterjee [supra], the petitioner deserves to be released on bail.

PAST CRIMINAL ANTECEDENTS:

16. Learned State Counsel has opposed the claim for bail on the ground that as per the Status Reports, the petitioner has criminal antecedents, who has been involved in three other cases i.e. [i] FIR No. 123/2011 dated 3.6.2011 u/s 341, 323, 504 & 34 IPC which is pending before the Gram Panchayat Baldwara [ii] FIR No.140 of 2014 dated 12.5.2014 under Section 15 NDPS, in which petitioner stands acquitted by Learned Sessions Judge, Mandi and [iii] FIR No 196 of 2023, dated 03.7.2018, regd u/s 15 & 18 NDPS in PS Nalagarh, which is under Investigation. Based on above criminal antecedents, the petition is opposed in instant case.

16(i). Before analyzing the contention of the Learned State Counsel it is necessary to have a recap of the mandate of law, in broader sense, as to whether the past criminal antecedents are relevant and in what circumstances and extent thereof and in what circumstances and to what extent past antecedents turn out to be irrelevant or not much relevant while considering the claim of an accused for bail, which are detailed here-in-below.

16(ii). While negativating the plea that the past criminal antecedents {i.e. 36 criminal cases of serious nature} cannot solely be the ground for denying bail or in interfering with the bail order granted by a Court when, an accused was undergoing incarceration coupled with the fact that no cogent material was placed on record revealing that during bail there is possibility of accused fleeing away from the trial or an accused is likely to threaten witnesses or is likely to thwart justice, has been outlined by the Honble Supreme Court in Maulana Mohammed Amir Rashidi versus State of Uttar Pradesh, (2012) 2 SCC 382, in the following terms; 4. On the basis of a written complaint in the Police Station, Phoolpur, FIR No 63 of 2009 under Sections 302 and 307 IPC was registered. The second respondent was arrested only on 24.08.2009. It was further stated by the appellant that the accused is a habitual criminal and has a criminal background having more than three dozen cases involving serious offences against him.

"10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.

11. In the case relating to FIR No. 63 of 2009, he was arrested and in jail since 24.08.2009. Another important aspect is that after filing of charge-sheet on 15.07.2010, prosecution examined two important witnesses as PWs 1 and 2. This was the position prevailing on 26.07.2010. Even thereafter, now more than a year has rolled. Counsel appearing for the State assured that the trial will not be prolonged at the instance of the prosecution and ready to complete the evidence within a period to be directed by this Court. The other objection of the appellant for grant of bail is that he had received threats from the second respondent and his supporters warning him not to pursue the case against him. It is brought to our notice that based on the representations of the appellant, adequate protection had already been provided to him.

13. Taking note of all these aspects, particularly, the fact that the second respondent was in jail since 24.08.2009, the trial has commenced by examining the two witnesses on the side of the prosecution and the assurance by the State that trial will not be prolonged and conclude within a reasonable time and also of the fact that the High Court while granting bail has imposed several conditions for strict adherence during the period of bail, we are not inclined to interfere with the order of the High Court. In fact, in the impugned order itself, the High Court has made it clear that in case of breach of any of the conditions, the trial Court will have liberty to take steps to send the applicant to jail again. In addition to the same, it is further made clear that if the appellant receives any fresh threat from the second respondent or from his supporters, he is free to inform the trial Court and in such event the trial Court is free to take appropriate steps as observed by the High Court. We also direct the Trial Court to complete the trial within a period of four months from the date of the receipt of copy of this order without unnecessary adjournments.

14. With the above observation, finding no merit for interference with the order of the High Court, the appeal is dismissed."

16(iii). While granting bail to an accused having criminal antecedents and was facing incarceration for 7 months and when, no prima-facie accusation or reasonable grounds existed, by the Hon’ble Supreme Court in Prabhakar Tewari Versus State of Uttar Pradesh and another, (2020) 11 SCC 648, in the following terms:-

“4. Learned counsel for the appellant has submitted that the accused Vikram Singh is involved in at least five other criminal cases under the same Police Station, Jagdishpur. He has also brought to our notice the witness statement of one Narendra Dev Upadhyay. This statement was recorded on 29th March 2019. The part of his statement to which our attention has been drawn by learned counsel for the appellant records that the said witness saw Vikram Singh standing near National Highway 56 Flyover on the date of occurrence of the incident in Warisganj with 6 or 7 accomplices and all of them were talking about plans of killing the victim.

5. We have considered the respective submissions. The facts highlighted by the appellant are that the case involves offence under Section 302 read with Sections 120-B/ 34, 147, 148 and 149 of the Indian Penal Code, 1860. The accused has several criminal cases pending against him and has been named in the statement forming the basis of the FIR on the date of occurrence itself. Two individuals, Rahul Tiwari and Narendra Dev Upadhyay, whose statements have been recorded under Section 161 of the 1973 Code also refer to involvement of the accused Vikram Singh.

7. On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed.

Criminal Appeal No.153 of 2020 [arising out of SLP (Crl) No.9209 of 2019].

9. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed.”

16(iv). While extending the concession of bail despite past criminal antecedents, on principle that ‘bail is rule and jail is an exception’, benefit of bail, and an accused is presumed to be innocent and in the guise of pending cases, the presumption of guilt could not be inferred as has been outlined by the Hon’ble Supreme Court in Union of India versus Mrityunjay Kumar Singh, 2024 SCC OnLine SC 852, in the following terms:-

“9. He would contend that there are other three (3) cases registered against the respondent which would suffice to reject the bail in the instant case relying upon the letter dated 15.12.2023 written by the father of the complainant in the case No.225 of 2023 addressed to the State Police alleging that the respondent and his associates are threatening the life of the complainant and pressurizing him to withdraw the case and hence there is every likelihood of the witnesses in the instant case also being threatened therefore he seeks for allowing of the appeal and setting aside the order of the High Court. He would further contend that the respondent is an influential person and would make all attempts to threaten or influence witnesses and there is every likelihood that he may succeed in his attempts if he continues to have the benefit of the bail. He would also submit that respondent is an influential and a person with criminal history and having close ties with many gangsters and criminals apart from the top cadres CPI-Maoist, as such there is every likelihood for the respondent to tamper with the evidence and influence the witnesses. Hence, he prays for the appeal being allowed and impugned order being set aside.

10. Shri Siddharth Luthra, learned Senior Counsel appearing for the respondent, by supporting the impugned order contends that the High Court has rightly set aside the order of the Special Judge by granting bail to the respondent conditionally way back on 30.01.2023 and even after lapse of more than 1 year and 3 months, there being no allegation on the conditions of bail having been violated, itself is a good ground for non-interference with the order of bail granted by the High Court. Elaborating his submissions, he would contend that the prosecution is seeking for the impugned order being set aside essentially on the ground that respondent is involved in three (3) cases apart from the case registered by NIA. He would further submit that the case registered by Chandwa PS in Case No.99 of 2014 has resulted in acquittal and in the case No.108 of 2015, the respondent has been enlarged on bail by the High Court of Jharkhand. Lastly, in the case No.4 of 2020, the respondent has been granted anticipatory bail by the High Court of Jharkhand and as such the purported criminal antecedent did not sway in the mind of High Court while considering the prayer for grant of bail. Even otherwise the pendency of three (3) other cases would have no bearing for the continuation of the order of bail granted in favour of the respondent. Hence, he has prayed for rejection of the appeal.

15. As rightly contended by Shri Siddharth Luthra, learned Senior Counsel appearing for respondent, in the first case afore- mentioned the respondent has been acquitted by judgment dated 07.09.2015 (Annexure R-11). In so far as the cases at Serial No.2 and 3 (supra), the respondent has been enlarged on bail vide orders dated 10.07.2020 (Annexure R-12) and order dated 10.07.2020. In yet another case registered by Chandwa PS Case No. 225 of 2023 the respondent has been enlarged on anticipatory bail in ABP No. 426 of 2023.

16. The afore-stated facts when seen cumulatively, it would reflect that respondent having been enlarged on bail conditionally and the conditions so stipulated having not been violated and undisputedly the appellant-state having not sought for cancellation of the bail till date would be the prime reason for us not to entertain this appeal. In fact, the apprehension of the Union of India that respondent is likely to pose threat to the witnesses and there was a threat posed to the complainant, Mr. Sanjay Kumar Tiwari, would not be a ground to set aside the impugned order enlarging the respondent on bail in as much in the case referred against the respondent for the said offence he has been granted bail. That apart we are of the considered view that there are no other overwhelming material on record to set aside the order granting bail which out weighs the liberty granted by the High Court under the impugned order.

17. Hence, we are of the considered view that interference is not warranted. However, to allay the apprehension of the prosecution it would suffice to observe that the prosecution would be at liberty to seek for cancellation of the bail in the event any of the conditions being violated by the respondent and in the event of such an application being filed we see no reason as to why said application would not be considered on its own merits by the jurisdictional court independently and without being influenced by its earlier observations. We also make it expressly clear that the observations made under the impugned order would be restricted to the consideration of the prayer for bail and the jurisdictional court without being influenced by any of the observation shall proceed to adjudicate the case on merits after trial. Subject to the above observations, the appeal stands dismissed.”

16(v). While dealing with validity of bail order the Honble Supreme Court has mandated that the criminal antecedents were not much relevant in case, no prima facie case was made out and the period of incarceration was prolonged, in Ayub Khan versus State of Rajasthan, 2024 SCC OnLine SC 3763, in the following terms:-

“9. The principles to be followed while deciding on a bail application are well settled. If Trial Courts commit errors while deciding bail applications, the same can always be corrected on the judicial side by the Courts, which are higher in the judicial hierarchy. The Constitutional Courts can lay down the principles governing the grant of bail or anticipatory bail. However, the Constitutional Courts cannot interfere with the discretion of our Trial Courts by laying down the form in which an order should be passed while deciding bail applications. What the High Court has done in paragraph 9 in the decision in the case of Jugal Kishore is that it has made it mandatory for the Trial Courts to incorporate a chart containing details of the antecedents of the accused who applies for bail.

10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents. In such cases, the question of incorporating details of antecedents in a tabular form does not arise. If the directions in the case of Jugal Kishore are to be strictly implemented, the Court may have to adjourn the hearing of the bail applications to enable the prosecutor to submit the details in the prescribed tabular format.

11. When the prosecution places on record material showing antecedents of the accused, and if the Court concludes that looking at the facts of the case and the nature of antecedents, the accused should be denied bail on the ground of antecedents, it is not necessary for the Court to incorporate all the details of the antecedents as required by paragraph 9 of the decision in the case of Jugal Kishore. The Court may only refer to the nature of the offences registered against the accused by referring to penal provisions under which the accused has been charged.”

16(vi). Pendency of other criminal cases cannot be invoked for denying bail, when, no prima facie case exists and prolonged incarceration was writ large, has been mandated by the Hon’ble Supreme Court in Prem Prakash versus Union of India through Directorate of Enforcement, 2024 SCC OnLine SC 2270, in the following terms:-

“46. The Investigating Agency have also referred to ECIR No. 4 as a criminal antecedent. A reference was made to ECIR No. 4 of 2022 pertaining to illegal Stone Mining and related activities in Saheb Ganj, Jharkhand, where the petitioner was arrested on 25.08.2022 and the prosecution complaint was filed on 16.09.2022. Insofar as the bail pertaining to ECIR No. 4 of 2022, which is pending in this Court in SLP (Criminal) No. 691 of 2023, at the after notice stage, the merits of the bail in that case will be independently examined. Having examined the facts of the present case arising out of ECIR No. 5 of 2023 and in view of the findings recorded hereinabove, we do not think that the appellant can be denied bail based on the pendency of the other matter. We say so in the facts and circumstances of the present case as we do not find any justification for his continued detention. The appellant has already been in custody for over one year. The Trial is yet to commence. There is a reference to one more ECIR which the Investigating Agency refers to in their counter, namely, ECIR /RNZO /18 / 2022 but nothing is available from the record as to whether any proceedings have been taken against the appellant.

49. In the result, we pass the following order:-

(i) The appeal is allowed and impugned order dated 22.03.2024 is quashed and set-aside.

(ii) The Trial Court is directed to release the appellant on bail in connection with ED case No. ECIR No. 5 of 2023 on furnishing bail bonds for a sum of Rs.5 lakh with 2 sureties of the like amount.”

In facts of instant case, the plea of Learned State Counsel is examined and the plea is devoid of any merit, for the reason, that firstly, neither any prima facie case nor reasonable grounds exist and prosecution story appears to be highly doubtful and improbable at this stage as discussed hereinabove; and secondly, the Status Report reveals that bail petitioner is in custody since 5.5.2023 and is undergoing incarceration for about one year and eight months 1 year and 8 months ; and thirdly, conclusion of trial is likely to take considerable time when out of total 25 PWs only 4 PWs have been examined as yet ; and fourthly, delay in trial is not attributable to the petitioner ; and fifthly, an accused is presumed to be innocent unless proven guilty ; and sixthly, the continued detention can neither be punitive nor preventative and seventhly, the continued detention in guise of penalizing the petitioner by presuming guilt cannot be permitted; and eighthly, even the State Authorities have not placed any cogent and convincing material that after release on bail there is possibility of accused fleeing away from the trial or an accused is likely to threaten witnesses or is likely to thwart justice ; and ninthly, even the State Authorities have not placed anything on record to show that the petitioner has misused the liberty granted to him earlier; and lastly, the State Authorities have adequate safeguards by moving the Courts for cancellation of bail in case there was any violation of or misuse of the concession-liberty and once the accusation is yet to be tested, examined and proved during the trial therefore, in these circumstances, the past criminal antecedents or pendency of other cases as discussed above cannot be the sole basis for denying bail, so as to deprive and curtail the sacrosanct fundamental rights of personal liberty and right of speedy trial under Article 21 of the Constitution of India and, therefore, on totality of circumstances, the claim of petitioner for bail carries weight and is granted, in peculiar facts of this case.

MANDATE OF HON’BLE SUPREME COURT IN BAIL IN COMMERCIAL QUANTITY: PROLONGED INCARCENATION AND COMPLETION OF TRIAL TO TAKE CONSIDERABLE TIME:

17. While dealing with similar situation dealing with involvement of accused in commercial quantity of contraband, Hon’ble Supreme Court has extended the benefit of bail to the bail petitioner in Petition(s) for Special Leave to Appeal (Crl.) No(s). 1904/ 2023, titled as Sunil Kumar Versus The State of Himachal Pradesh, decided on 29.03.2023, in the following terms:-

“It is noted that the petitioner has been in custody for more that one and a half years and the trial is yet to conclude. Earlier, the petitioner had been granted interim bail on two occasions and has not misused the liberty of interim bail or violated any of the bail conditions imposed upon him but has thereafter, surrendered back.

Therefore, keeping all these aspects in view, the petitioner is ordered to be released on bail subject to appropriate conditions being imposed by the Trial Court including the condition that the petitioner shall diligently participate in the trial. Ordered accordingly.”

17(i). In Petition(s) for Special Leave to Appeal (Crl.) No(s).4648/2024, titled as Ankur Chaudhary Versus State of Madhya Pradesh, decided on 28.05.2024, Hon’ble Supreme Court extended benefit of bail by invoking Article 21 of Constitution of India as prolonged incarceration defeats the precious fundamental rights and such fundamental rights have to override the statutory embargo in Section 37 (1) (b) of NDPS Act in the following terms:-

“Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.

In view of the above, we are inclined to allow this petition and direct to enlarge the petitioner on bail on furnishing the suitable bail bonds and sureties and on such other terms and conditions as may be deemed fit by the trial Court.”

17(ii). In Petition(s) for Special Leave to Appeal (Crl.) No(s). 7115 /2024, titled as Sohrab Khan versus The State of Madhya Pradesh, decided on 13.08.2024, the Hon’ble Supreme Court has extended benefit of concession of bail to an accused, who was facing incarceration of one year and four months in the following terms:-

“The petitioner is an accused for the alleged offences punishable under Sections 8/22 and 29 of the Narcotic Drugs and Psychotropic Substances Act. His bail application was dismissed by the High Court. He has already undergone about one year and four months in jail. The petitioner and com accused were found in possession of 80 grams of MD powder each of which commercial quantity is 50 grams.

Considering the fact that the petitioner criminal antecedents and the entire facts and circumstances has no of this case, we are of the opinion that a case of bail is made out for the petitioner and therefore, the prayer of the petitioner is allowed.

Accordingly, the petitioner is directed to be released on bail forthwith on the usual terms and conditions to be decided by the concerned Court.”

17(iii). In Petition(s) for Special Leave to Appeal (Crl.) No(s). 9510/2024, titled as Ram Lal Versus The State of Rajasthan, decided on 17.09.2024, similar benefit of bail was extended where the incarceration was prolonged, as in this case, in the following terms:-

“The petitioner and the other accused persons are accused for the offences punishable under Sections 8/21 & 8/29 of the Narcotic Drugs and Psychotropic Substances Act and allegation is that 450 gm of smack has been recovered from them. The bail application of the petitioner was dismissed by the High Court. Hence, he approached this Court. He has already undergone about 1 year and 6 months in jail.

Heard learned counsel for the petitioner. As per office report Rated 13.09.2924, the service is deemed complete on the sole respondent- State but no one has appeared for the state.

Considering the period of incarceration of the petitioner and the fact that the petitioner has no criminal antecedents, we are of the opinion that a case of bail is made out for the petitioner.

Accordingly, the petitioner is directed to be released on bail forthwith on the usual terms and conditions to be decided by the concerned Court.”

MANDATE OF THIS COURT GRANTING BAIL IN COMMERCIAL QUANTITY DUE TO PROLONGED INCARCENATION AND COMPLETION OF TRIAL TO TAKE CONSIDERABLE TIME:

18. While dealing with the claim for bail in a case, a Co-ordinate Bench of this Court, in Cr. MP (M) No. 2618 of 2023, Jasbir Singh versus State of Himachal Pradesh, decided on 4.11.2023 has affirmed the right to bail in view of the prolonged detention of the accused therein, in the following terms:-

“5(ii). ….. In 2021 (3) SCC, 713, Union of India Versus K.A. Najeeb, Hon’ble Apex Court considered various judicial precedents where Article 21 of the Constitution of India was invoked in case of gross delay in disposal of cases of under- trials and consequential necessity to release them on bail. The earlier decisions were reiterated that liberty granted by Part-III of the Constitution, would cover within its protective ambit not only due procedure and fairness, but also access to justice and speedy trial. It was held that once it is obvious that a timely trial would not be possible and the accused have suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail. Some relevant paras from the judgments are extracted hereinafter:-

“10. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him. The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43D (5) of UAPA. 11. The High Court’s view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn, laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case:

“10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.” …

(emphasis supplied)

12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (“ the NDPS Act”) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba v. State of Maharashtra and Umarmia alias Mamumia v. State of Gujarat enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 13. We may also refer to the orders enlarging similarly situated accused under the UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years’ incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra, an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.

15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Under-trial Prisoners) v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter.

However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.

17. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

5(iv). ……A previous bail petition bearing Cr.MP (M) No.1458/2022 instituted by the petitioner was dismissed on merit on 02.09.2022. While deciding the aforesaid bail petition, considering the fact that FIR in question pertained to the year 2020, it was hoped and expected that the learned Trial Court would make endeavour to expedite the trial. We are now at the fag end of 2023. In terms of the status report filed by the respondent, the prosecution has examined 16 witnesses thus far. Statements of 23 prosecution witnesses still remain to be recorded. The zimni orders placed on record reflect that the trial has been deferred time and again for want of presence of prosecution witnesses. Considering the fact that at this stage 23 witnesses remain to be recorded, it is apparent that the trial is not going to be concluded in near future. The petitioner, who has already spent about three years and five months in custody, in my considered opinion has made out a case for his enlargement on regular bail at this stage. There is no criminal history of the petitioner. The apprehension expressed by the prosecution about the likelihood of petitioner’s tampering with the evidence or winning over remaining witnesses, can be taken care of by imposing stringent conditions and also granting liberty to the respondent/State to seek cancellation of the bail in case the conditions are violated by the petitioner. In view of all the aforesaid reasons and without expressing any opinion on the merits of the case, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR…..”

18(i). While dealing with the claim for bail in commercial quantity of poppy straw [churapost-bhukki] of 54.760 Kgs. and taking into account the prolonged incarceration for about one year and eight months, the Co-ordinate Bench of this Court, has extended concession of bail to an accused, in Cr.MP (M) No. 1003 of 2024, titled as Vijay Singh Versus State of Himachal Pradesh, decided on 24.05.2024, in the following terms:-

“10. Though, the case at hand is to be decided by learned trial Court, in the totality of evidence collected on record by the investigating agency, but having noticed aforesaid glaring aspects of the matter, there appears to be no justification for this Court to let the bail petitioner incarcerate in jail, for an indefinite period during trial, especially when rigours of S.37 of the are not attracted on account of recovery of small quantity.

11. Learned counsel for the petitioner while inviting attention of this court to judgments dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023, titled Puran Chand v. State of HP and Prem chand v. State of HP., submitted that in similar facts and circumstances, coordinate Bench of this Court as well as this Court enlarged the accused on bail on the ground of inordinate delay. Having perused aforesaid judgments passed by the coordinate Bench of this Court, this Court finds that in both the cases, commercial quantity of contraband was recovered from the accused, but yet court having taken note of the fact that they were behind the bars for more than three years, proceeded to enlarge them on bail.

12. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.

13. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.

14. Recently, Hon'ble Apex Court in SLP(Crl) No. 1904 of 2023 titled Sunil Kumar v. The State of Himachal Pradesh, decided on 29.3.2023, has ordered enlargement of petitioner therein, who was behind bars for one and half years, on the ground of delay in trial and conduct of the petitioner.

15. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail, especially in the cases where rigors of Section 37 are attracted.

16. In the instant case, bail petitioner is behind bars for more than 13 months and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial.”

18(ii). Recently, the Coordinate Bench of this Court in Cr.MP(M) No. 2656 of 2024, titled as Kamal Singh Versus State of Himachal Pradesh, decided on 11.12.2024, has enlarged the accused on bail in case relating to commercial quantity of charas, i.e. 1.209 Kgs. who was facing incarceration for about 12 months, in the following terms:-

“2. ........Allegedly, police recovered one rucksack (pithu bag) from the vehicle containing huge quantity of contraband. On weighing, police found that 1.209 Kgs. of charas / sulfa was being transported by the occupants in the vehicle, as detailed hereinabove. Since, no plausible explanation ever came to be rendered on record qua possession of aforesaid commercial quantity of contraband ”

21. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR ”

BROADER PRINCIPLES APPLIED IN GRAVER OFFENCES

{COMMERCIAL QTY} APPLICABLE IN LESSER GRAVER OFFENCES {INTERMEDIATE QTY} :

19. In backdrop of the mandate of law supra, once the concession of bail has been granted by taking into account the prolonged incarceration and the fact that conclusion of the trial was likely to take considerable time in cases of commercial quantity under NDPS Act then, on the same anology and by applying the same broader principles, to the facts of instant case, where the accusation against the petitioner relates to commercial quantity and Intermediate quantity i.e. lesser graver accusation of Intermediate Quantity which of course, is yet to be tested, examined and proved during the trial and therefore, this Court accedes to the prayer for bail, to the petitioner in facts of instant case.

NOTHING ADVERSARIAL REGARDING TAMPERING WITH EVIDENCE OR WITNESSES ETC:

20. Status Reports filed by State Authorities have neither pointed out cogent and convincing material revealing adversarial circumstances that after release on bail, the petitioner is likely to tamper with evidence or may cause inducement, threat or promise to any person or persons acquainted with the facts of the case. However, the apprehension if any, of the State Authorities are being safeguarded, by imposing stringent conditions in this bail order.

NOTHING ADVERSARIAL REGARDING OBSTRUCTING OR ATTEMPTING TO THWARTLING JUSTICE :

21. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances nor placed on record any cogent and convincing material on record to infer that after release on bail, the petitioner may obstruct or thwart the cause of justice in any manner. In absence of any material, the plea for bail deserves to be granted to the petitioner in the instant case.

NOTHING ADVERSARIAL LIKELIHOOD OF FLEEING AWAY FROM TRIAL OR JURISDICTION OF COURT:

22. In order to safeguard the rights of bail petitioner and to take care of apprehensions of State that bail petitioner may flee away [notwithstanding the fact that no such apprehension has been pointed out in Status Report] yet, in peculiar facts of this case, this Court stringent conditions in the bail orders, in later part of this order.

CONCLUSION AND DIRECTIONS:

23. Taking into account the entirety of the facts, the material on record and the mandate of law and in view of the discussion made and the reasons recorded hereinabove and in the peculiar facts of case, the instant petition is allowed, and the State Authorities are directed to release the petitioner [Om Parkash] on bail, subject to observance of the following conditions:-

"(i). Respondent-State Authorities shall release bail petitioner [Om Prakash] on furnishing personal bond of Rs. 75,000/- {Rs Seventy Five Thousand} with two sureties on furnishing similar bond amount each, to the satisfaction of the Learned Trial Court concerned;

(ii). Petitioner shall undertake and shall also appear on every date of trial hereinafter;

(iii). Petitioner shall abide by all or any other condition(s), which may be imposed by the Learned Trial Court, in view of this order;

(iv). Petitioner shall neither involve himself nor shall abet the commission of any offence hereinafter. Involvement in any offence whatsoever or abetting thereof shall entail automatic cancellation of bail granted in terms of this order ;

(v). Petitioner shall disclose his functional E-Mail IDs/ WhatsApp number and that of his surety to the Learned Trial Court;

(vi). Petitioner after release, shall report to the Investigating Officer or SHO of Police Station concerned, nearest to his native place, i.e. Narola, Tehsil Baldwara, District Mandi [HP] on 2nd Sunday of every month at 11.00 a.m., only for having an update on good conduct and behaviour;

(vii). Petitioner shall not jump over the bail and also shall not leave the country without the prior information of the Court;

(viii). Petitioner shall not tamper with the evidence in any manner;

(ix). Petitioner shall not cause any inducement, threat or promise {directly or indirectly} to witnesses of any other person acquainted with the case;

(x). Petitioner is free to seek modification of any condition contained hereinabove, if need arises;

(xi) State Authorities are free to move this Court for seeking alteration/modification of any of the condition contained in this order or any condition imposed by the Learned Trial Court as a sequel to this order, in fact situation of instant case or circumstances so necessitate, at any time herein-after;

(xii). State Authorities are free to move this Court for seeking cancellation of the concession of bail, in case, the petitioner violates any of the conditions contained in this order."

24. Observations made in this judgment shall not be construed in any manner as an indictive of findings, for or against the parties herein, either for the purpose of investigation or for trial, which shall proceed in-accordance with law, irrespective of any of the observations contained hereinabove.

25. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy, but if required, may verify about the passing of this order from the Website of this Court.

26. The Registry is directed to forward a copy of this order to Superintendent of Police, Mandi, District Mandi, Himachal Pradesh, for information and necessary action in terms of this order.

27. Pending miscellaneous application(s), if any, shall also stand disposed of.