Chandigarh: 2 drug accused get bail as cops fail to depose in 18 hearings - Hindustan Times
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Chandigarh: 2 drug accused get bail as cops fail to depose in 18 hearings

By, Chandigarh
Oct 22, 2023 08:20 AM IST

As per the proceedings before the HC, the trial court had to adjourn the hearings 18 times as none of the prosecution witnesses turned up.

Though it is difficult to get bail in drug cases, two persons, caught for alleged possession of heroin in April 2022, walked free, on Punjab and Haryana high court (HC) orders, as police failed to depose before a Mohali trial court on 18 occasions.

Though it is difficult to get bail in drug cases, two persons, caught for alleged possession of heroin in April 2022, walked free, on Punjab and Haryana high court (HC) orders, as police failed to depose before a Mohali trial court on 18 occasions. (Getty Images/iStockphoto)
Though it is difficult to get bail in drug cases, two persons, caught for alleged possession of heroin in April 2022, walked free, on Punjab and Haryana high court (HC) orders, as police failed to depose before a Mohali trial court on 18 occasions. (Getty Images/iStockphoto)

As per the proceedings before the HC, the trial court had to adjourn the hearings 18 times as none of the prosecution witnesses turned up.

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The development comes at a time when the state’s home secretary and director general of police (DGP) were summoned by the HC on August 12 on the same issue by a coordinate bench.

“…the continuous absence of police officials/prosecution witnesses under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, does give rise to a genuine apprehension qua some of them possibly having an unholy nexus with the drug mafia, which needs to be curbed with a heavy hand without any further delay, failing which the situation could worsen beyond repair,” the court had observed on October 12, seeking a detailed plan from the state’s home secretary to address the issue of non-appearance of cops in drug seizure cases.

Non-examination of witnesses due to their absence leads to delays in trial, making ground for the accused person to secure bail due to long periods of incarceration.

‘Cops did not appear even after bailable/non-bailable warrants’

The FIR was registered on April 24, 2022, at Zirakpur police station. The allegations were that the duo was caught in a car with 346gm of heroin in a packet. The charges were framed on September 15, 2022.

Both the accused, Abhishek and Monu Singh, had argued before HC that almost a year and a month has elapsed after the framing of the charges and not even a single prosecution witness has been examined. Besides, the trial court had to adjourn the case 18 times only for the purpose of summoning prosecution witnesses.

On the last two dates of hearing, even bailable/non-bailable warrants were issued to the cops but despite that, they did not care to depose before the court. Hence, they can’t be kept in jail indefinitely for failure in bringing in prosecution witnesses.

The government counsel had admitted that the accused have been in custody for a year-and-a-half but not even a single prosecution witness has been examined.

The court’s order read it had asked the government counsel for a justification on why prosecution witnesses, who are none other than police officials who had set the criminal law into motion, are not deposing now. The counsel could not offer any justification or any reason.

Taking note of various judgments and facts of this case, the bench of justice JS Puri allowed the bail plea observing that the prosecution has failed to get any of the prosecution witnesses examined despite about 18 adjournments after the charges were framed and even bailable/non-bailable warrants were also issued by the trial court. “... this court is of the view that the bar contained under Section 37 of the NDPS Act will not apply to both the petitioners in the light of Article 21 of the Constitution of India,” it said order release of both the accused.

Why securing bail in drug cases isn’t easy

Section 37 of the NDPS Act bars bail to a person booked in a case of seizure of a commercial quantity. The Supreme Court, while dealing with Section 37 of the NDPS Act, has held that before granting bail, the court must have “reasonable grounds” for believing that the accused is “not guilty” of the offence that they have been charged with and that they are unlikely to commit an offence under the NDPS Act again while on bail. The second condition is that an opportunity is granted to the public prosecutor to oppose the bail.

The courts are, however, bound by the recent SC judgment, wherein it was held that prolonged incarceration generally militates against the most precious fundamental right guaranteed under Article 21 (right to life and liberty) of the Constitution, and in such a situation, the conditional liberty must override the statutory embargo created under Section 37 of the NDPS Act.

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