Sandeep Sharma, J
1. Bail petitioner namely Devender Kumar, who is behind bars since 15.01.2024, has approached this Court in the instant proceedings filed under Section 483 of Bharatiya Nagrik Suraksha Sanhita (hereinafter ‘BNSS’) for grant of regular bail in case FIR No.1 of 2024, dated 15.01.2024, under Sections 21, 27 & 29 of ND&PS Act, registered at Police Station New Shimla, District Shimla, H.P. Respondent-State has filed the status report and ASI Tej Singh has come present with record.
2. Close scrutiny of record/status reported reveals that on 15.01.2024, police, after having received secret information that persons namely Kunal Sharma and Devender Kumar, who hail from Punjab indulge in illegal trade of narcotics, raided room No. 101 of Dusk and Down Hotel, near Khalini Chowk, Shimla, and allegedly recovered 22.04 grams of Chitta/Heroin in presence of independent witnesses. Since, no plausible explanation ever came to be rendered by the aforesaid persons, on record qua possession of aforesaid quantity of contraband, police after having completed necessary codal formalities, lodged FIR, detailed hereinabove, arrested both the accused Kunal Sharma and Devender Kumar on 15.01.2024. Co-accused Kunal Sharma already stands enlarged on bail vide order dated 04.06.2024 passed by learned Special Judge, under ND & PS Act (CBI Court) Shimla, whereas present petitioner is behind bars for more than ten months. Since challan stands filed in the competent Court of law and nothing remains to be recovered from the bail-petitioner, he has approached this Court in the instant proceedings for grant of regular bail.
3. Mr. Peeyush Verma, learned Senior Counsel duly assisted by Mr. Lalit Kumar Sehgal & Mr. Subhash Verma, Advocates, argued that petitioner has been falsely implicated because contraband allegedly recovered in the case at hand was never recovered from the conscious possession of the petitioner, rather from the room of a hotel and not in the presence of independent witnesses. Mr. Verma, further states that once co-accused already stands enlarged on bail, coupled with the fact that petitioner herein is in judicial custody and considerable time is likely to be consumed in conclusion of trial, he also deserves to be enlarged on bail. Mr. Verma, further states that since other co-accused Kunal Sharma is not making himself present in the trial, trial is being unnecessarily delayed, as a result thereof, petitioner is languish in jail without his being held guilty.
4. Mr. B.C.Verma, learned Additional Advocate General, while fairly admitting factum with regard to filing of the challan in the competent court of law, states that though nothing remains to be recovered from the bail-petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. Mr. Kahol, states that there is overwhelming evidence adduced on record suggestive of the fact that bail-petitioner is a drug-peddler and in the event of his being enlarged on bail, he may not only flee from the justice, but may again indulge in these activities. Lastly, Mr. B.C.Verma, submits that since co-accused Kunal Sharma, who is already enlarged on bail by the learned Court Court, is absconding, it may be in the interest of justice to enlarge him on bail because in that eventuality, it may not be possible for the Court as well as investigating agency to conclude the trial and there is possibility of petitioner’s fleeing from justice.
5. Having heard learned counsel for the parties and perused material available on record, this Court finds that intermediate quantity of contraband came to be recovered from the room, where present petitioner was staying alongwith other co-accused Kunal Sharma and as such, this Court is not persuaded to agree with learned Senior Counsel for the petitioner that bail-petitioner has been falsely implicated. Moreover, this Court finds that recovery of contraband was effected in the presence of independent witnesses. However, having taken note of the fact that co-accused already stands enlarged on bail, coupled with the fact that bail-petitioner is behind bars for approximately ten months and as such, prayer made on behalf of bail-petitioner for grant of regular bail on the ground of inordinate delay in conclusion of trial, deserves to be considered.
6. Record reveals that bail application having been filed by the petitioner was not considered by the learned Court below on the ground that at first instance petitioner had approached this Court. Bare perusal of submission made by learned Additional Advocate General, as has been taken note hereinabove, suggests that plea of bail made on behalf of petitioner is being opposed on the ground that since co-accused Kunal Sharma is absconding, there is every likelihood of bail-petitioner fleeing from justice in the event of his being enlarged on bail. However, this Court is not persuaded to accept the aforesaid submission made on behalf of respondent-State. Once it is not in dispute that co-accused Kunal Sharma was also present at the time of recovery of contraband and order granting him bail passed by learned Court below was never laid challenge in the superior Court of law, it may not be fair to let the bail-petitioner incarcerate in jail for indefinite period during trial, especially when, guilt, if any, of him is yet to be established by leading cogent and convincing evidence. Though status report suggests that co-accused Kunal Sharma has failed to make himself available during trial, but that cannot be ground to deny the prayer made on behalf of petitioner for grant of bail, rather in that eventuality, proper course for prosecution is to apply for the cancellation of bail granted in favour of co-accused and besides this, prayer can also be made before learned Court below to initiate proceedings against surety, who had furnished, surety in favour of co-accused Kunal Sharma, while, he was enlarged on bail. Moreover, rigors of Section 37 of the Act are not attracted on account of recovery of intermediate quantity of contraband.
7. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Since in the case at hand guilty, if any, of the bail petitioner is yet to be established by the prosecution, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when, nothing remains to be recovered from the bail-petitioner. Since prosecution witnesses are yet to be examined, this Court has reason to presume and believe that considerable time is likely to be consumed in conclusion of trial and in case bail petitioner is left to incarcerate in jail for an indefinite period during trial, that would not only amount to pre-trial conviction, but would also be violative of Article 21 of the Constitution of India.
8. By now, it is well settled that speedy trial is fundamental right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Hon’ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
“11. This Court has consistently recognized the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
9. The Hon’ble Apex Court in case titled Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, passed in Criminal Appeal No.2787 of 2024, decided on 03.07.2024, having taken note of its various judgments passed in the past, proceeded to conclude that 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. Most importantly, in the afore judgment, Hon’ble Apex Court has held that Article 21 of the Constitution applies irrespective of the nature of the crime. Relevant paras of the afore judgment read as under:
“15. The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as “the 2008 Act”) mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17)
“17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed,both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings,the 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 safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”
17. In the recent decision, Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973would apply:
“We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.”
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, maybe, 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.”
10. Hon’ble Apex Court in Manish Sisodia v. Enforcement Directorate, 2024 SCC OnLine SC 1920 while placing reliance upon its earlier judgments rendered in number of cases, especially Javed Gulam Nabi Shaikh (supra), again reiterated that right to speedy trial is a fundamental right of an accused and infraction thereof amounts to violation of Arctile 21 of the Constitution of India. Relevant paras of the judgment passed in Manish Sisodia case read as under:
“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.
51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia v. State of Punjab, Hussainara Khatoon (I) v. Home Secretary, State of Bihar, Union of India v. K.A. Najeeb and Satender Kumar Antil v. Central Bureau of Investigation. The Court observed thus:
“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.”
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”.
54. In the present case, in the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.”
11. Reliance is also placed upon judgment passed by the Hon’ble Apex Court in Jalaluddin Khan v. Union of India, 2024 SCC OnLine SC 1945, wherein Hon’ble Apex Court while dealing with a case registered under Sections 13, 18, 18A, and 20 of Unlawful Activities (Prevention) Act, 1967, enlarged the accused on bail on the ground of inordinate delay in conclusion of trial. Relevant para of the afore judgment is reproduced herein below:
“21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.”
12. Reliance is also placed upon latest judgment dated 28.8.2024, passed in Prem Prakash v. Union of India through The Directorate of Enforcement, (Petition for Special Leave to Appeal (Crl.) No. 5416 of 2024), wherein having taken note of the inordinate delay in conclusion of trial, Hon’ble Apex Court proceeded to enlarge the accused on bail. Relevant para of the aforesaid judgment reads as under:
“12. Independently and as has been emphatically reiterated in Manish Sisodia (II) (supra) relying on Ramkripal Meena Vs Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024) and Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, 2024 SCC online 1693, where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial within a short span, the rigours of Section 45 of PMLA can be suitably relaxed to afford conditional liberty. Further, Manish Sisodia (II) (supra) reiterated the holding in Javed Gulam Nabi Sheikh (Supra), that keeping persons behind the bars for unlimited periods of time in the hope of speedy completion of trial would deprive the fundamental right of persons under Article 21 of the Constitution of India and that prolonged incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial. In fact, Manish Sisodia (II) (Supra) reiterated the holding in Manish Sisodia (I) Vs. Directorate of Enforcement (judgment dated 30.10.2023 in Criminal Appeal No. 3352 of 2023) where it was held as under:-
“28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years.”
It is in this background that Section 45 of PMLA needs to be understood and applied. Article 21 being a higher constitutional right, statutory provisions should align themselves to the said higher constitutional edict.”
13. In the aforesaid judgment, Hon’ble Apex Court having taken note of all judgments passed in recent times, categorically held that bail is rule and jail is an exception. If all the judgments taken note herein above are read in conjunction, Hon’ble Apex Court has categorically held that court while considering prayer for grant of bail may not be impressed with the arguments advanced by the prosecution that charge against the person seeking bail is serious, but in case, court finds that on account of inordinate delay in conclusion of trial of the trial, fundamental right of speedy trial is being violated, it should proceed to grant bail. No doubt, in the case at hand, charge against the petitioner is serious, but there is no denial to the fact that bail petitioner is languishing in jail for one year and ten months despite his not being held guilty, rather charge against him, if any, is yet to be framed by the competent court of law.
14. Repeatedly, it has been held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.
15. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
16. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
17. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that 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.
18. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
19. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
20. 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, subject to his furnishing personal bond in the sum of Rs. 2,00,000/-with two local sureties each in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) He shall surrender his passport, if any, before the investigating agency.
21. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
22. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.
23. A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.
