KAILASH SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Petitioner is facing trial for offence under Ss. 20 and 29 of Narcotic Drugs and Psychotropic Substances, Act (for short 'ND&PS' Act), before learned Special Judge, Kullu. He has been charged for being in possession of commercial quantity of Charas (2 Kg 144 Grams).

(2.) Petitioner was booked for above offence, vide FIR No. 193 of 2022, dtd. 6/9/2022, registered at Police Station Bhuntar, District Kullu, H.P. The allegation against petitioner is that on 6. 07.2022, at about 6:00 PM, a police patrol party apprehended petitioner at place Kishtanu near Gadsa within the jurisdiction of Police Station Bhuntar, District Kullu, H.P. As per police, petitioner tried to flee from the scene at the sight of police and also threw the carry bag held by him towards bushes. The carry bag thrown by the petitioner was searched and 2 Kg 144 Grams of Charas was recovered. 4. Petitioner has now prayed for grant of bail on the ground that his constitutional right of expeditious disposal of trial has been infringed. As per petitioner, he is in custody for more than one year and seven months and the trial has not concluded, rather, it is progressing at snail's pace. 5. It has been revealed from records that out of sixteen cited witnesses only five witnesses have been examined till date. 6. Learned Additional Advocate General has opposed the prayer of the petitioner, on the ground that Sec. 37 of ND&PS Act, has application in the facts of the case and merely, on the ground of delay in conclusion of trial, petitioner cannot be released on bail. 7. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report. 8. The fetters placed by Sec. 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case till date. The question that arises for consideration is, can the provision of Sec. 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. 9. As is suggested by the contents of status report, recording of prosecution evidence is still in progress despite the fact that petitioner is in custody since 6/9/2022. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Sec. 37 of ND&Ps Act in perpetuity. In Rabi Prakash Vs. The State of Odisha, (2023) LiveLaw (SC) 533, Special Leave to Appeal (Crl.) No.(s) 4169 of 2023, decided on 13. 07.2023, Hon'ble Supreme Court has observed as under:-