Vivek Singh Thakur, J
1. Petitioner has approached this Court, invoking provisions of Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short ‘BNSS’),
registered in Police Station Baddi, Police District Baddi, District Solan, H.P. under Section 22 of Narcotic Drugs and Psychotropic Substances Act, (in
short ‘NDPS Act’).
2. Petitioner, in present case, has been arrested on 30th August, 2021 for having been found in possession of 250 tablets of Clovidol (Tramadol
Hydrochloride tablets) and 2940 tablets of Lomotil Diphenoxylate Hydrochloride and Atropine Sulphate from carry-bag hanging on the handle of the
motorcycle, during search of his motorcycle, conducted on the basis of secret information received from a faithful informer. As per chemical analysis
report, received from State FSL, Clovidol-100 SR (Tramadol Hydrochloride tablets) were found Acetaminophen, Chlorphenramine and Diclofance
tablets, with total weight of 112.0 gms and Lomotil tablets were found to be tablets of Diphenoxylate Hydrochloride tablet, having total weight 188.160
gms. Challan in present case was presented in the Court on 11.11.2021. Petitioner, after his arrest on 30th August, 2021, remained in policy custody
and thereafter, he is in judicial custody.
3 As per status report, the recovered contraband was Lomotil (Diphenoxylate hydrochloride tablets) weighing 188.160 grams and Clovidol-100 SR
(stated as tablets of Tramadol) (Acetaminophen, chlorpheniramine & Diclofance tablets) weighing 112.0 grams, total amouning to 300.160 grams.
4. Petitioner had approached this Court for enlarging him on bail by filing Cr.MP(M) No. 2083 of 2021, which was dismissed as withdrawn on 7th
January, 2023. Thereafter, petitioner was enlarged on interim bail on account of ailment of his mother, who had undergone neurosurgery, vide order
dated 24 th June, 2022 passed in Cr.MP(M) No. 1043 of 2022 for about one month. On expiry of period of interim bail, he surrendered before the
Court. Petitioner had filed another Bail Application Cr.MP(M) No. 1895 of 2022 ttled Ranjeet Singh @ Billa vs. State of HP for enlarging him on bail,
which was dismissed on 13th January, 2023. Thereafter, petitioner had filed Cr.MP(M) No. 848 of 2023, which was dismissed as withdrawn on 31st
May, 2023. One more application Cr.MP(M) No. 2848 of 2023 was again dismissed as withdrawn on 1st December, 2023.
5 It has been further submitted that there are total 21 witnesses out of which only 3 witnesses have been examined and one witness has been given up
and, therefore, 17 witnesses are yet to be examined.
6 It has been further submitted that vide order dated 31st May, 2023, passed in Cr.MP(M) No. 2848 of 2023, the Trial Court was directed to make
endeavour to conclude the trial as expeditiously as possible keeping in view its seniority and provisions of the High Court of Himachal Pradesh Case
Flow Management (Subordinate Courts) Rules, 2005 by ensuring recording of evidence as speedily as required.
7 It has been further submitted that despite the aforesaid order, on 26th June, 2024, the date subsequent to passing of aforesaid order, no witness was
present in Court and, thus, trial was adjourned for recording of prosecution evidence on 5th and 6th September, 2024, i.e. 6 witnesses (3 on each
date). It has been submitted that on 5th and 6th September, 2024 also, no witness was present and even police witnesses despite service were not
present and now the case has been listed for recording the prosecution evidence on 11.12.2024, on which date 3 witnesses have been directed to be
summoned.
8 It has been submitted by learned counsel for petitioner that petitioner is behind the bars for the last more than 3 years and taking into consideration
period of detention and pace of trial, he is entitled for bail in given facts and circumstances of present case.
9 Learned counsel for the petitioner, to substantiate plea for bail, has referred pronouncement of the order dated 01.08.2022 passed by the Supreme
Court in a petition for Special Leave to Appeal (Crl.) No.3961 of 2022, titled as Abdul Majeed Lone vs. Union Territory of Jamu and Kashmir,
wherein petitioner facing trial for having been found in possession of 1100 grams commercial quantity of charas was enlarged on bail for suffering
incarceration for over 2 years and 5 months, observing that there was no likelihood of completion of trial in near future; and order dated 12.10.2020,
passed by Three Judges’ Bench of the Supreme Court, in Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. 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 of 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.
10 Learned counsel for the petitioner has referred pronouncement of the Supreme Court in Nitish Adhikary @ Bapan v. The State of West Bengal,
Special Leave to Appeal (Crl.) No.5769 of 2022,d ecided on 1.8.2022, whereby the accused, under Sections 21(c) and 37 of NDPS Act, was
ordered to be enlarged on bail after detention of 1 year and 7 months, observing that the trial was at a preliminary stage.
11 Learned counsel for the petitioner has also placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of
2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Benga,l whereby accused having found in possession of Codeine mixture above
commercial quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the
trial.
12 Reliance has also been placed on order dated 10.11.2021 passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 5187 of 2021,
titled as Kulwant Singh Vs. The State of Punjab ,whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that
recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody
undergone by him and the fact that trial would take time to conclude.
13 Learned counsel for the petitioner has also placed reliance upon order dated 7.12.2021 passed by the Supreme Court in Criminal Appeal No. 1570
of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of tablets of Tramadol X-225,
was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms. However, in this case bail was granted by taking into
consideration the fact that charge-sheet was filed on 23.9.2018 and thereafter even charges had not been framed nor trial had commenced till grant of
bail to the petitioner, whereas manufacturer who sold the drug to the accused had been granted bail.
14 Learned counsel for petitioner has also relied upon order dated 5.8.2022 passed by the Supreme Court in Gopal Krishna Patra @ Gopalrusma
vs. Union of India (Cr. Appeal No. 1169 of 2022), wherein accused in custody since 18.6.2020 was ordered to be enlarged on bail considering the
facts and circumstances on record and length of custody undergone by him.
15 Learned counsel for petitioner has placed reliance upon judgment dated 13.1.2023 passed by this Bench in Cr.MP(M) No. 61 of 2023 titledC het
Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 11 months for recovery of 1.900 Kg. charas has
been ordered to be enlarged on bail.
16 Learned counsel for petitioner has placed reliance upon judgment dated 29.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2703 of 2022
titled Ram Chand vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 11 months for recovery of 2 Kg.
charas has been ordered to be enlarged on bail.
17 Learned counsel for petitioner has placed reliance upon judgment dated 22.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2521 of 2022
titled Prem Chand vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 9 months for recovery of 2.605 Kg.
charas has been ordered to be enlarged on bail.
18 Learned counsel for petitioner has placed reliance upon judgment dated 28.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 349 of 2023
titled Kewal Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 5 years and 4 months for recovery of 3.045 Kg.
charas has been ordered to be enlarged on bail.
19 Learned counsel for petitioner has placed reliance upon judgment dated 12.12.2022 passed by this Bench in Cr.MP(M) No. 2324 of 2022 titled
Rajesh Kumar vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 5 months for recovery of 3.125 Kg.
charas has been ordered to be enlarged on bail.
20 Learned counsel for petitioner has placed reliance upon judgment dated 12.1.2023 passed by Coordinate Bench in Cr.MP(M) No. 59 of 2023
titled Joseph Shobal vs. State of Himachal Pradesha nd judgment dated 26.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2657 of 2022
titled Jeet Ram vs. State of Himachal Pradesh wherein an accused under detention for the last 3 years and 3-4 months for recovery of 3.382 Kg.
charas have been ordered to be enlarged on bail.
21 Learned counsel for petitioner has placed reliance upon judgment dated 20.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 327 of 2023
titled Surender Singh vs. State of Himachal Pradesh wherein an accused under detention for the last 2 years and 7 months for recovery of 4.76
Kg. charas has been ordered to be enlarged on bail.
22 Learned counsel for petitioner has placed reliance upon judgment dated 23.2.2023 passed by Coordinate Bench in Cr.MP(M) No. 323 of 2023
titled Tivalue @ Shiv Chand vs. State of Himachal Pradesh wherein an accused has been enlarged on bail who was under detention for the last 3
years and 4 months for recovery of 5 Kg. charas and out of 11 witnesses only 6 witnesses were examined.
23 Learned counsel for petitioner has placed reliance upon judgment dated 23.12.2022 passed by Coordinate Bench in Cr.MP(M) No. 2570 of 2022
titled Chet Ram vs. State of Himachal Pradesh; judgment dated 4.1.2023 passed by Coordinate Bench in Cr.MP(M) No. 2836 of 2022 titled
Kaul Ram vs. State of Himachal Pradesh; judgment dated 04.01.2023 passed by Coordinate Bench in Cr.MP(M) No. 2837 of 2022 titled
Krishan Chand vs. State of Himachal Pradesh wherein accused under detention for the last 3 years and 1 month for recovery of 5.679 Kg. charas
have been ordered to be enlarged on bail, observing as under:-
 “7. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instance case till date. The
question that arises for consideration is, can the provisions of Section 37 of the Act, be construed to have same efficacy, throughout the pendency of trial,
notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?
8. It is submitted by learned counsel for the petitioner that till date only eight witnesses have been examined and ten more witnesses remain to be examined, despite
the fact that petitioner is in custody since 20.11.2019. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by
applying the rigors of Section 37 of ND&PS Act in perpetuity.
…….
12. In Gopal Krishna Patra @ Gopalrusma vs. Union of India (Cr. Appeal No. 1169 of 2022) decided on 05.08.2022, Hon’ble Surpeme Court has held as
under:-
“The appellant is in custody since 18.06.2020 in connection with crime registered as NCB Crime No.02/2020 in respect of offences punishable under Sections
8, 20, 27-AA, 28 read with 29 of Narcotic Drugs and Psychotropic Substances Act, 1985.
The application seeking relief of bail having been rejected, the instant appeal has been filed.
We have heard Mr.Ashok Kumar Panda, learned Senior Advocate in support of the appeal and Mr.Sanjay Jain, learned Additional Solicitor General for the
respondent.
Considering the fact and circumstance on record and the length of custody undergone by the appellant, in our view the case for bail is made outâ€
…….
16. Reverting to the facts of the case, the petitioner is in custody since 20.11.2019 and the facts suggest that the trial is not likely to be concluded in near future. There
is nothing on record to suggest that the delay in trial is attributable to the petitioner.â€
24 Referring aforesaid pronouncements, learned counsel for petitioner has pleaded that petitioner is also entitled for bail on the same analogy.
25 Learned Additional Advocate General has submitted that petitioner has committed a heinous crime which is not only destroying the individual but
Society at large and, therefore, for having been found in commercial quantity of prohibited manufactured drug/psychotropic substance, he is not
entitled for bail.
26 Petitioner was enlarged on temporary bail vide order dated 24th June, 2022 passed in Cr.MP(M) No. 1043 of 2022 on account of ailment of his
mother who had undergone nuerosurgery and on expiry of period of interim bail, he surrendered before the Court.
27 Learned counsel for petitioner has further submitted that petitioner is ready to furnish personal and surety bonds and also undertakes to abide by
any condition which may be imposed by Court in case of release of petitioner on bail, in order to assure his presence during trial.
28 It has been further submitted by learned counsel for petitioner that there is no role of petitioner for delaying the trial and in the status report, there is
no explanation rendered by respondent/State for not producing the evidence during trial despite the fact that petitioner is under-trial prisoner and is
waiting for conclusion of trial.
29 Without commenting upon merits of case and taking into consideration the entire facts and circumstances including the period of detention and
stage of trial and also taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at
the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.
30 Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail in present case, subject to his furnishing personal bond in the
sum of Rs.2,00,000/- with two sureties each in the like amount, one of which should be of local surety and other should be of relative, as undertaken
by petitioner, to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court,
including the conditions enumerated hereinafter, so as to assure the presence of petitioners/accused at the time of trial:-
(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate
the prosecution witnesses;
(iii) That the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) That the petitioner shall not misuse his liberty in any manner;
(vi) That the petitioner shall not jump over the bail;
(vii) That in case petitioner indulge in repetition of similar offence(s), then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) That the petitioner shall not leave the territory of India without prior permission; and
(ix) That the petitioner shall inform the Police/Court their contact number and shall keep on informing about change in address and contact number, if any, in future.
31 It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary
in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or
further condition on the petitioner as it may deem necessary in the interest of justice.
32 In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach
the competent Court of law for cancellation of bail, in accordance with law.
33 Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139
dated 18.03.2013.
34 Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of
the bail application.
Petition is disposed of in aforesaid terms.
