.
Satyen Vaidya, J
1. Petitioner by way of instant petition has prayed for grant of bail under Section 439 Cr.P.C. in case registered vide FIR No.170 of 2022, dated
23.11.2022, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘ND&PS Act), at Police Station, Dhalli,
District Shimla, H.P.
2. Petitioner was arrested on 23.11.2022 and is in custody since then. Report under Section 173 Cr.P.C. stands filed in the Court.
3. The case against the petitioner is that on 23.11.2022, a routine police patrol near Kufri, received a secret and credible information to the effect that
a person bearing shirt with checks and grey pant and having a bagpack was involved in selling “Charas†to consumers near Kufri bye-pass.
Report under Section 42 (2) of the ND&PS Act was prepared and sent to the office of Additional Superintendent of Police, through Constable
Vikrant Singh. Independent witnesses were associated. A person was found near liquor vend at Kufri. When police party signaled him to stop, he
started running towards Fagu but was overpowered by the police party. He disclosed his name as Roshan Thakur (petitioner). The bagpack carried by
petitioner was searched on suspicion. 514 grams of Charas was recovered from the bag. The case was registered and petitioner was arrested. In
addition, currency notes worth Rs.4570/- were also recovered. Report submitted by the Forensic Science Laboratory, has also opined the substance
recovered from the bag of petitioner to be extract of cannabis and sample of Charas.
4. Learned counsel for the petitioner contended that the petitioner has been falsely implicated in the case. He is not involved in any offence. In the
past also, petitioner has not been found involved in any other offence. The investigation is complete and no fruitful purpose shall be served by detaining
the petitioner in custody for indeterminate period.
5. On the other, learned Additional Advocate General has opposed the prayer. It is submitted that the gravity of offence committed by petitioner
cannot be undermined only for the reason that the quantity of contraband recovered from the petitioner is less than commercial quantity. He has
further contended that the petitioner was found indulging in sale of Charas, that too, in broad day light, which reflects the respect which the petitioner
holds for law.
6. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
7. The record reveals that the petitioner had earlier also approached this Court for grant of bail in the same case vide bail application Cr.MP(M) No.
1155 of 2023. This Court after considering the merits of the contentions raised by the parties, had declined the prayer vide order dated 23.05.2023.
8. This is successive bail application of the petitioner. It is well settled that the successive bail application, can be entertained only in changed
circumstances. It has been averred in the application that while declining the prayer for bail made by the petitioner in earlier petition, this Court had
observed that the trial was at initial stage and material witnesses were yet to be examined. It has been contended that now seven prosecution
witnesses including material witnesses have been examined. It has also been submitted that about 8 months have elapsed after the passing of earlier
order by this Court. The right of petitioner to speedy disposal of trial has been infringed, which by itself is a changed circumstance.
9. I have considered the above contentions and have found substance therein, therefore, the instant petition is being considered on merits.
10. The petitioner has been charged for being in exclusive possession of intermediate quantity of Charas. Thus, the rigors of Section 37 of the
ND&PS Act will not be applicable in the case. In its status report, the respondent-State has also admitted that seven prosecution witnesses have
already been examined. It, however, has not been assured by the respondent-State that the trial in all probability will be concluded within short period
of time. That being so, this Court cannot ignore the basic human right available to the petitioner. Every accused is presumed to be innocent till the
charge is proved against him in accordance with law.
11. The petitioner is in custody since 23.11.2022. More than 13 months have elapsed and the trial has not been concluded. Keeping in view the fact
that the rigors of Section 37 of the ND&PS Act will not apply in the case, this Court finds no justification in further pre-trial incarceration of the
petitioner.
12. The apprehension expressed by the respondent-State regarding the possibility of petitioner fleeing from course of justice can be taken care of by
imposing stringent conditions against the petitioner. Admittedly, the petitioner has no criminal history. He is aged only about 21 years.
13. Keeping in view the peculiar facts of the case, this petition is allowed. Petitioner is ordered to be released on bail in case FIR No.170 of 2022,
dated 23.11.2022, registered under Section 20 of the ND&PS Act, at Police Station, Dhalli, District Shimla, H.P. subject to his furnishing personal
bond in the sum of Rs.1,00,000/- with two sureties each in the like amount having immoveable property in the State of Himachal Pradesh having
market value of more than the surety amount, to the satisfaction of learned Trial Court. This order, however, shall be subject to the following
conditions:
i) That the petitioner shall not indulge in any criminal activity and in the event of breach of this condition, the bail granted to the petitioner in this case,
shall automatically be cancelled.
ii) That the petitioner shall not leave the territory of India without express leave of Trial Court during the Trial.
iii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and
shall not tamper with the prosecution evidence.
iv) That the petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.
14. Any observation made in this order shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the
matter uninfluenced by any observation made hereinabove.
