[2023:RJ-JD:32439] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 5152/2023 Mohan Banodha S/o Amba Lal Banodha, Aged About 34 Years, W.no. 23, Water Box Road, Jaatiyawaas, Ps Kotwali Pratapgarh, Dist. Pratapgarh (Raj.). (Presently Lodged In Dist. Jail, Chittorgarh).
----Petitioner Versus Union Of India, Through Cbn
----Respondent For Petitioner(s) : Mr. Yogendra Singh Charan For Respondent(s) : Mr. K. S. Nahar, PP HON'BLE MR. JUSTICE FARJAND ALI Order 03/10/2023
1. The jurisdiction of this court has been invoked by way of filing an instant application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:
S.No. Particulars of the Case
1. FIR Number 01/2019
2. Concerned Police Station CBN
3. District Chittorgarh
4. Offences alleged in the FIR Sections 8/15 of NDPS
Act.
5. Offences added, if any ---
6. Date of passing of impugned 16.01.2023 order
2. The first bail application of petitioner came to be dismissed by a coordinate bench of this Court vide order dated 11.08.2020 with liberty to the petitioner to file afresh after the statement of (Downloaded on 12/11/2023 at 06:45:04 AM) [2023:RJ-JD:32439] (2 of 5) [CRLMB-5152/2023] seizure officer is recorded in trial. Now, seizure officer has been examined, hence the present second bail application is filed.
3. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. He submits that the sanctity of the seizure made at the office of Superintendent CBN, Chittorgarh is highly doubtful and no explanation furnished by the team members as to why the search and seizure was not made at the place where the vehicle was intercepted and why the seizure was conducted/carried out around 14 kms away from the place where the vehicle was intercepted. He is behind the bars since last four and a half years. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. State of Rajasthan & Anr., wherein it was held vide order dated 15.11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386, the aforesaid aspect has been reiterated. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises.
4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.
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5. Have considered the submissions made by both the parties and have perused the material available on record.
6. The statement of the seizing officer recorded under Section 164 of Cr.P.C. reveals that the process of seizure was conducted at the Office of Superintendent CBN, Chittorgarh instead of the place where the interception took place and the same is corroborated by the Panchnama Japti. It is not comprehensible as to what was the need to conduct the seizure at a place located 14 kms away from the place where the vehicle was intercepted; that too, at the premises of Office of Superintendent CBN, Chittorgarh even though the police station, Sadar Chittorgarh was located before the CBN office and no reasonable explanation has been furnished for the same.
7. In view of the guidelines propounded by Hon'ble the Supreme Court in the case of Satender Kumar Antil (supra) on the subject of bail on the ground of long period of incarceration, the sentence of the present applicant deserves to be suspended. The relevant paragraphs of the afore-mentioned judgment are as follows:-
"41.Sub-section (2) has to be read along with Sub-
section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of (Downloaded on 12/11/2023 at 06:45:04 AM) [2023:RJ-JD:32439] (4 of 5) [CRLMB-5152/2023] Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding atrial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436 A of the Code which stands on a different footing.
42. ......
43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436 A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.
44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436 A of the Code among other factor sought to be considered for a favourable release on bail."
8. This Court is cognizant of the provision contained in Section 37 of the NDPS Act but considering the submissions made by learned counsel for the accused-petitioner regarding his long incarceration which almost amounts to half of the total sentence awarded to him, this court is of the opinion that it is a fit case for grant of bail to the accused petitioner. Needless to say, none of the observations made herein under shall affect the rights of (Downloaded on 12/11/2023 at 06:45:04 AM) [2023:RJ-JD:32439] (5 of 5) [CRLMB-5152/2023] either of the parties during trial and this Court refrains from commenting on the niceties of the matter.
9. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.
(FARJAND ALI),J 44-Pramod/-
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