Amrit Pal v. State of Himachal Pradesh

vide FIR No. 5 of 2024, dated 26.01.2024, registered for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’), at Police Station, Parwanoo, District Solan, H.P. As per the prosecution, the petitioner was found in possession of 6.21 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 grams of heroin. The petitioner is innocent, and he was falsely implicated. The investigation is complete, and a charge sheet has been filed before the Court. The petitioner had earlier filed a bail petition, which was registered as Cr.MP(M) No. 2104 of 2024 and the same was dismissed on 4.10.2024. The petitioner has been behind the bars since 26.1.2024. There is a delay in the progress of the trial, and the right to a speedy trial of the petitioner is being violated. The petitioner would abide by the terms and conditions which the Court may impose. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 26.1.2024. When they reached near Shivalik Agro Poly Products Ltd., they received information at 6:20 PM that a bus bearing registration No. CH-01GA-8145 was going from Chandigarh to Shimla. Kunal and Prakash Chand were occupying Seats No. 34 and 35. They were transporting heroin with them in a carry bag. The police completed the formalities and stopped the bus at about 6.50 PM. The police checked the bus and found a person having a white carry bag on Seat No. 34. Another person sitting on Seat No. 35 revealed his name as Prakash Chand. Police searched the carry bag 3 and found 6.21 grams of heroin and other articles. The police seized the heroin and other articles and arrested Kunal and Prakash Chand. They revealed on inquiry that they had purchased heroin from Chandigarh. Kunal identified the place and the person who had sold the heroin, who revealed his name as Amrit Pal alias Ami-the present petitioner. Amrit Pal revealed during the investigation that he had concealed the heroin near the gate, which could be recovered by him. He got recovered 5.59 grams of heroin, which was seized by the police. He revealed on inquiry that Kapil Dev and Dishant Garg were running the business of supplying heroin. The customers were transferring money to the petitioner’s bank account, and he used to transfer it to Kapil Dev and his son. Police also arrested them. The challan was prepared and presented before the Court on 19.3.2024. FIR No. 15 of 2024, dated 24.1.2024 for the commission of offences punishable under Sections 21 and 29 of the ND&PS Act and FIR No. 17 of 2024, dated

25.1.2024 for the commission of offences punishable under Sections 304, 201, 202 read with Section 34 of IPC and Section 29 of ND&PS Act were registered against the petitioner in Police Station Boileauganj. Accused Parveen Garg was released on bail; however, he was arrested in another case on 25.10.2024. The 4 production warrants have been issued against him to secure his presence, returnable for 9.5.2025. Hence the status report.

3. I have heard Mr. Hemant Kumar Thakur, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State.

4. Mr. Hemant Kumar Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. As per the prosecution's case, the petitioner was found in possession of 5.59 grams of heroin, which is an intermediate quantity. The petitioner has been in custody since

28.1.2024. More than one year has elapsed, but the charges have not been framed in the present case. There is no likelihood of the early framing of the charge. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

5. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner was involved in the commission of the heinous offence. He is a drug peddler and would indulge in the commission of a similar offence in case of his release on bail. Hence, he prayed that the present petition be dismissed. 5

6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

7. It is undisputed that the petitioner had earlier filed the bail petition bearing Cr.MP(M) No. 2104 of 2024, which was dismissed on 4.10.2024. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that once a bail application has been dismissed, a subsequent bail application can only be considered if there is a change of circumstances. It was observed: “Once that application was rejected, there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes, which are of little or no consequence. Between the two orders, there was a gap of only two days, and it is nobody's case that during these two days, drastic changes had taken place, necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed, reversing all earlier orders, including the one rendered by Puranik, J., only a couple of days before, in the absence of any substantial change in the fact situation. In such cases, it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him.

8. Similarly, it was held in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528, that where an earlier bail 6 application has been rejected, the Court has to consider the rejection of the earlier bail application and then consider why the subsequent bail application should be allowed. It was held: “11. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration, if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent bail application should be granted.”

9. It was submitted that there is a delay in the progress of the trial, and certified copies of the order sheets have also been filed. A perusal of the certified copies of the order sheets shows that the charges have not been framed, and a production warrant has been issued to secure the presence of Parveen Garg. The fact that the learned Trial Court has failed to frame charges despite the lapse of one year supports the plea of the petitioner that there is a delay in the progress of the trial.

10. It was held in Pankaj Kumar v. State of Maharashtra, (2008) 16 SCC 117: (2010) 4 SCC (Cri) 217: 2008 SCC OnLine SC 1055 that the right of speedy trial in every criminal proceedings is an unalienable right of the accused. It was observed on page 126: “22. It is, therefore, well settled that the right to a speedy trial in all criminal prosecutions is an inalienable right 7 under Article 21 of the Constitution. This right applies not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to a speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases.

11. It was held in Ajay Kumar Choudhary v. Union of India, (2015) 7 SCC 291: (2015) 2 SCC (L&S) 455: 2015 SCC OnLine SC 127 that the right to a speedy trial is a fundamental right of the accused. It was observed on page 298: “13. Article 12 of the Universal Declaration of Human Rights, 1948, assures that: “12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

14. More recently, the European Convention on Human Rights in Article 6(1) promises that: “6. (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time….” and in its second sub-article, that: “6. (2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

15. The Supreme Court of the United States struck down the use of nolle prosequi, an indefinite but ominous and omnipresent postponement of civil or criminal prosecution in Klopfer v. North Carolina [18 L Ed 2d 1: 386 US 213 (1967)]. 8

16. In Kartar Singh v. State of Punjab [(1994) 3 SCC 569: 1994 SCC (Cri) 899] the Constitution Bench of this Court unequivocally construed the right of speedy trial as a fundamental right, and we can do no better than extract these paragraphs from that celebrated decision: (SCC pp. 638-39, paras 86-87) “86. The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of the investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from the impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averted. In this context, it may be noted that the constitutional guarantee of a speedy trial is properly reflected in Section 309 of the Code of Criminal Procedure.

87. This Court in Hussainara Khatoon (1) v. State of Bihar [(1980) 1 SCC 81: 1980 SCC (Cri) 23] while dealing with Article 21 of the Constitution of India has observed thus: (SCC p. 89, para 5) ‘5. … No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that a speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied a speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long-delayed trial in violation of his fundamental right under Article 21. Would he be entitled to be released 9 unconditionally, freed from the charge levelled against him on the ground that trying him after an unduly long period of time and convicting him after such trial would constitute a violation of his fundamental right under Article 21.”

17. The legal expectation of expedition and diligence being present at every stage of a criminal trial and a fortiori in departmental enquiries has been emphasised by this Court on numerous occasions. The Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225: 1992 SCC (Cri) 93] underscored that this right to speedy trial is implicit in Article 21 of the Constitution and is also reflected in Section 309 of the Code of Criminal Procedure, 1973; that it encompasses all stages viz. investigation, inquiry, trial, appeal, revision and retrial; that the burden lies on the prosecution to justify and explain the delay; that the Court must engage in a balancing test to determine whether this right had been denied in the particular case before it.”

12. It was held in Shaheen Welfare Association. v. Union of India, (1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot be kept behind bars when there is no prospect of trial being concluded expeditiously. It was observed at page 621: “8. It is in this context that it has become necessary to grant some relief to those persons who have been deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and the nation needs to be safeguarded looking to the nature of the offences these undertrials have been charged with. But the ultimate justification for such deprivation of liberty pending trial can only be their being found guilty of the offences for which they have been charged. If such a finding is not likely to be arrived at within a reasonable time, some relief becomes necessary.” 10

13. Similarly, it was laid down by the Hon’ble Supreme Court in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321: (2022) 3 SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be subjected to unending detention pending trial. It was observed at page 335: “40. Having held so, we cannot be oblivious to what has been urged on behalf of the respondent-accused that cancellation of bail by this Court is likely to be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed under Article 21 of the Constitution (see Union of India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713, paras 15 and 17] ).”

14. It was laid down in Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352 that the right to a speedy trial is a constitutional right of an accused. The right of bail is curtailed on the premise that the trial would be concluded expeditiously. It was observed: - 11 “13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest - as observed in Vaman Narain Ghiya v. State of Rajasthan, [2008] 17 SCR 369: (2009) 2 SCC 281 ('the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal....'). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3 SCC 569 made observations to this effect. In Shaheen Welfare Association v. Union of India, [1996] 2 SCR 1123: (1996) 2 SCC 616 again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on: A conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under- trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efÏciently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods.”

15. The Court highlighted the effects of pre-trial detention and the importance of a speedy trial as under: 12 “22. Before parting, it would be important to reflect that laws which impose stringent conditions for the grant of bail may be necessary in the public interest; yet, if trials are not concluded in time, the injustice wreaked on the individual is immeasurable. Jails are overcrowded, and their living conditions, more often than not, are appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as of 31st December 2021, over 5,54,034 prisoners were lodged in jails against a total capacity of 4,25,069 lakhs in the country[National Crime Records Bureau, Prison Statistics in India https://ncrb.gov. in/sites/default/files/P SI-202 1/Executive ncrb Summary-2021.pdf]. Of these 122,852 were convicts; the rest, 4,27,165 were undertrials.

23. The danger of unjust imprisonment is that inmates are at risk of 'prisonisation', a term described by the Kerala High Court in A Convict Prisoner v. State, 1993 Cri LJ 3242 as a radical transformation ' whereby the prisoner: 'loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity, and autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes. '

24. There is a further danger of the prisoner turning to crime, 'as crime not only turns admirable but the more professional the crime, more honour is paid to the criminal'[Working Papers - Group on Prisons & Borstals - 1966 U.K.] (also see Donald Clemmer's 'The Prison Community' published in 1940[Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, 'Donald Clemmer's Concept of Prisonisation', at: https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobecki_s klad.pdf (accessed on 23rd March 2023).]). Incarceration has further deleterious effects, where the accused belongs to available 13 the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts, therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases where special laws enact stringent provisions- are taken up and concluded speedily.”

16. It was laid down by the Hon’ble Supreme Court in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Anr. in Criminal Appeal No. 2787 of 2024 decided on 03.07.2024 that the right to speedy trial of the offenders facing criminal charges is an important facet of Article 21 of the Constitution of India and inordinate delay in the conclusion of the trial entitles the accused to grant of bail, it was observed: - “12 Long back, in Hussainara Khatoon v. Home Secy., the State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court”. Remarking that a valid procedure under Article 21 is one which contains a procedure that is “reasonable, fair and just” it was held that: “Now obviously procedure prescribed by law for depriving a person of liberty cannot be “reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that a speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and 14 essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied a speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long- delayed trial in violation of his fundamental right under Article 21.” 13 The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter, the court re-emphasised the right to a speedy trial and further held that an accused, facing a prolonged trial, has no option: “The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands a speedy trial and yet he is not given one, it may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to a speedy trial on the ground that he did not ask for or insist upon a speedy trial.”

17. It was further held that if the State or any prosecuting agency, including the Court concerned, has no wherewithal to provide the right of speedy trial to the accused, then the bail should not be opposed on the ground that the crime is serious. It was observed 15 “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.”

18. This position was reiterated in Balwinder Singh vs. State of Punjab SLP (Cr) 8523 of 2024 decided on 09.09.2024 wherein it was observed: “7. An accused has a right to a fair trial, and while a hurried trial is frowned upon as it may not give sufÏcient time to prepare for the defence, an inordinate delay in the conclusion of the trial would infringe the right of an accused guaranteed under Article 21 of the Constitution.

8. It is not for nothing that the Author Oscar Wilde in “The Ballad of Reading Gaol” wrote the following poignant lines while being incarcerated: “I know not whether Laws be right, Or whether Laws be wrong; All that we know who be in jail Is that the wall is strong; And that each day is like a year, A year whose days are long.”

19. Thus, the petitioner is entitled to bail because of a violation of his right to a speedy trial.

20. The petitioner was found in possession of 5.59 grams of heroin, which is slightly more than a small quantity. Keeping in 16 view the quantity of heroin found in possession of the petitioner, his further detention is not justified.

21. It was submitted that the petitioner has criminal antecedents. It was laid down by the Hon’ble Supreme Court in Ayub Khan v. State of Rajasthan, 2024 SCC OnLine SC 3763: 2024: INSC:994 that the criminal antecedents may not be a reason to deny bail to the accused in case of his long incarceration. It was observed: “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.”

22. Consequently, the present petition is allowed, and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹1,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court. While on 17 bail, the petitioner will abide by the following terms and conditions: - (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever; (II) The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments; (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court; (IV) The petitioner will surrender his passport, if any, to the Court; and (V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

23. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

24. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of District Jail, Solan District, Solan, H.P. and the learned Trial Court by FASTER. 18

25. The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the case's merits.

26. 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 the order presented to it, the same may be ascertained from the ofÏcial website of this Court. 4th June, 2025 (Chander) (Rakesh Kainthla) Judge