ASHOK SOLOMAN Vs. STATE OF DELHI

JUDGEMENT

(1.) This is an application for bail by the accused/petitioner in the case under Sections 20, 21, 29 and 85 of the N.D.P.S. Act. The prosecution case stated in brief is that on July 21, 1986 at about 6.30 a.m. the petitioner was apprehended near Vikram Hotel New Delhi sitting in a Maruti Car. On search of the dicky of the car three bags containing 32 packets of one kilogram each of charas were recovered. The further case of the prosecution is that in pursuance of the interrogation of the accused 331 kg. of charas was found lying in drums in a shed bearing No. 25-B, Okhla Industrial Estate, Part II, New Delhi, which was searched at about 12.30 p.m. on that very day.

(2.) Two or three bail applications moved by the petitioner were dismissed by this Court. The last application of the petitioner was dismissed in January, 1988. The petitioner was, however, thereafter twice allowed interim bail by two orders of this Court. P.K. Bahri J. by his order dated May 26, 1988 allowed interim bail to the petitioner for a period of one month in order to enable to petitioner to join the marriage of his sister. Subsequently, the same learned Judge further extended the interim bail of the petitioner by one more month i.e. upto July 27, 1988 by order dated June 24, 1988. The petitioner seeks release on bail now mainly on the ground that there has been an undue and inordinate delay in the conclusion of the trial of the case against him. Before I deal with this contention of the petitioner I may briefly state the history of the case. The petitioner was arrested in the case on July 21, 1986. Challan in the case was put in against the accused on September 24, 1986. Two cases were registered against the petitioner, one relating to the recovery of 96 kgs. of charas from the Maruti Car. This was registered by police station Lajpat Nagar. The other case regarding the alleged recovery of 331 kg. of charas allegedly recovered on July 23, 1986 was registered by Kalka Ji Police on July 23, 1986. The petitioner was committed in both these cases some time in October, 1986. Separate charges were framed against the petitioner in the two cases in April, 1987. On May 18, 1987 both the cases against the petitioner were consolidated and thereafter a single charge was framed against the petitioner on May 18, 1987 arising out of the two alleged recoveries. A number of dates were thereafter given by the learned Trial Court for recording of evidence of the prosecution. Piecemeal evidence has been recorded in the case during the period from July 18, 1987 onwards. The admitted position is that the statements of seven witnesses of the prosecution have been recorded so far and the examination- in-chief and part cross-examination of another witness, namely Shri Lakshminarain Rao, P.W. 8, has been recorded. Besides that part examination-in-chief of S.I. Rajinder Bakshi has also been recorded. It is the admitted position that seven of these nine witnesses are formal witnesses and in fact, two of them namely Smt. Rattan Kanta and Smt. Sarla Wadhwa are the landlords of the shed from where 331 kg. of charas is alleged to have been recovered, and their statements are directed only against G.M. Malik, a co-accused of the petitioner who is stated to have been a tenant of that premises and who is a proclaimed offender. The statements of the said two. witnesses have been recorded in his absence so that after the arrest of that accused the prosecution may be able to get them transferred to the record of his case. There, are in all six witnesses of the recovery of the drug in question namely, charas, including Shri Lakshminarain Rao and S.I. Rajinder Bakshi. As stated by me already above the cross-examination of Shri Lakshminarain Rao has not as yet concluded as so far as the other witness S.I. Rajinder Bakshi is concerned his examination-in-chief even has not as yet concluded. It was submitted by Bawa Gurcharan Singh, learned Counsel for the accused that an accused is to be presumed to be innocent till convicted. It was further submitted by Mr. Bawa that bail is not to be denied to an accused for keeping him in incarceration by way of punishment. He further submitted that the expeditious and speedy trial of a case is a fundamental right of an accused, that once a sessions trial is started it should be continued from day-to-day and should be continued expeditiously. He referred to the provisions of Criminal Procedure Code as also the High Court Rules and Orders and submitted that a session trial should ordinarily conclude within a period of six months from the date of commitment, order sheet entries from the record of the case was also read out to show that statement of the witnesses of the prosecution has to be recorded on day-to-day basis, longer dates have been given for recording the statements of witnesses of the prosecution has been unable to produce the main witnesses i.e. the witnesses of the recovery before the Trial Court till now. Mr. Bawa submitted that going by the history of the case and having regard to the conditions as prevailing in the sessions courts at Delhi the conclusion of trial may yet take a very long time. It was contended that under such circumstances and also having regard to the conduct of the petitioner in having fully co-operated with the court as also the prosecution during the period of two months he was on interim bail he should be admitted to bail. to support of his contention Mr. Bawa referred to three decisions of the Supreme Court namely, Hussain Khattoon & ors. v. Home Secretary, State of Bihar, Nimeon Sanoma v. Home Secretary, Govt. of Meghalaya & ors.2 and Kadra Pehadiya & ors. v. State of Bihar Reference was also made to the two Full Bench judgments of the Patna High Court in the case of the State v. Maksudan Singh & ors. and Anurag Baitha v. State of Bihar. It was submitted that the Supreme Court in the case of Kadra Pehadiya (supra) clearly and categorically held that the trial of a session case should not exceed one year. It was submitted that this was so held while considering the question of detention of accused persons in jail for inordinately long periods without the trial being concluded expeditiously. Mr. Bawa lastly referred to an order of D.P. Wadhwa J. in the case of Shanta Kumar v. State. That is the case of a bail application in the case in which the petitioner was standing trial for the offence of murder punishable under Section 302 of the Indian Penal Code before the same learned Additional Sessions Judge, Mr. R.P. Gupta, who is trying the present case of the petitioner. In that case the learned Judge relying on the decisions of the Supreme Court in the case of Hussainara Khattoon (supra) and of Nimeon Sangma (supra) admitted the accused to bail on the ground that the recording of the prosecution evidence in that case had not started during the period of two years from the date of arrest of the accused till the passing of the order by the Court admitting the petitioner to bail. It was also submitted by Mr. Bawa that no part of the delay in the conclusion of the trial of the petitioner is attributable to the petitioner and that there is no cause for apprehension that the petitioner shall flee from justice or shall otherwise abuse the concession of bail if allowed to him.

(3.) Sodhi Teja Singh, learned Public Prosecutor for the State, opposed the bail application. It was submitted that the petitioner is standing trial of the grave and heinous offence under the N.D.P.S. Act and that it is a case of heavy recovery of charas. It was also submitted by Mr. Sodhi that the delay in the trial of the case is not attributable to the prosecution and has occurred owing to the existing conditions as there is much pendency of cases before Sessions courts at Delhi. Having heard the parties learned Counsel and regard to the totality of the facts and circumstances of the case I think there is no justification for keeping the petitioner in further incarceration by denying him bail at this stage. As state by me already above, the petitioner has already been in custody for more 6. Cr. M.M. 1476/87, decided on 14-3-1988 than two years. The trial of the case has not made any headway as yet. The statement of not even a single witness of the recovery out of the six witnesses of recovery of the prosecution has yet concluded. Going by the past history of the case and having regard to the prevailing conditions that cases are lingering on and that trial is getting unduly delayed for a variety of reasons one cannot really say as to how much further time the conclusion of trial is likely to take. Cases are not unknown where inspite of the mandatory orders of the superior courts directing the conclusion of trial in session cases courts are unable to conclude the trials within the specified periods and the trials get lingered on for long periods beyond the specified dates. Keeping this in view and further keeping in view the past conduct of the petitioner in that he has already been on bail for a period of two months by virtue of the said two orders granting him interim bail and that the petitioner is not even alleged to have tried to abuse the concession of bail allowed to him in any manner. I think the petitioner should be admitted to bail. The fact that the petitioner fully cooperated with the court as also the prosecution in the matter of the progress of the case when he was on bail inasmuch as he admittedly appeared before the court on each and every date of hearing on which the case came up for recording of prosecution evidence on three or four occasions during the said period and later surrendered before the court on the expiry of the period of his interim bail go to show that the petitioner is not likely to flee from justice or to abuse bail in any manner if so allowed to him. Also no part of the delay is attributable to the petitioner. I accordingly accept the application and admit the petitioner to bail. He be released on bail on his furnishing a personal bond in the sum of Rupees one lakh with two sureties each in the like sum to the satisfaction of the Trial Court. The further conditions of the bail are that the petitioner shall not leave India till the conclusion of the trial and the pronouncement of judgment in the case except with the prior permission of the Trial Court. He shall surrender his passport, if any, to the Trial Court before his bail bonds are accepted by the Trial Court. The petitioner shall also not tamper with the prosecution evidence in any manner or try to influence any prosecution witnesses, directly or indirectly. Dasti. Application accepted.