Manjeet Singh S/O Shri Sukha Singh vs State Of Rajasthan
2021 Latest Caselaw 7298 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

 S.B. Criminal Miscellaneous III Bail Application No. 15198/2021

Manjeet Singh S/o Shri Sukha Singh, Aged About 37 Years, R/o
Bahadurpur Ps Safido Dist. Jeend Haryana At Present Confined
In Central Jail Ajmer
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent

For Petitioner(s)         :     Mr.Anil Upman
For Respondent(s)         :     Mr.Mangal Singh Saini, PP



             HON'BLE MR. JUSTICE FARJAND ALI

                          Judgment / Order

07/12/2021

The instant third bail application has been filed by the

accused petitioner Manjeet Singh who is in custody in connection

with FIR No. 229/2016 lodged at P.S. Nasirabad Sadar, Ajmer for

the offence under Sections 8/15, 8/25 and 8/29 of the NDPS Act.

Brief facts necessary for the disposal of this bail application

are that as per the prosecution on 15.7.2016 a vehicle was

intercepted by the police which was being driven by the accused

petitioner and upon search, six gunny bags were found in the

dicky of the car which found to be poppy husk; the total weight of

the contraband was 105 kg, therefore, the accused was arrested

for the contravention of the provisions of NDPS Act. After

conducting usual investigation, charge-sheet came to be

submitted against him vide charge-sheet dated 31.12.2016. The

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learned trial Judge took cognizance of the offence and thereafter

charges were framed on 22.2.2017 and thus commenced trial.

First bail application of the petitioner was dismissed by this

court vide order dated 18.8.2018. Thereafter second bail

application was dismissed vide order dated 14.10.2020.

Aggrieved by the rejection of two bail applications, accused

petitioner approached the Hon'ble Apex Court seeking relief of

bail, and the Hon'ble Apex Court vide its order dated 8.1.2021,

though dismissed the bail plea, however, taking into consideration

the fact of long incarceration of 04 years and 05 months, directed

the trial court to dispose of the matter within a period of six

months from the date of receipt of copy of the order. A rider

contends that if the trial is not concluded within the stipulated

time, the petitioner would be at liberty to move the trial court for

grant of bail. Accordingly, after expiry of six months, when the

trial is still pending, the accused again moved a bail application

before the learned trial court but the same has been dismissed

vide order dated 1.9.2021 citing the reason that the statements of

several witnesses are to be recorded yet.

Learned counsel for the petitioner submits that as a matter

of fact the petitioner is in custody since 15.7.2016 and the trial

has not been concluded yet. He submits that out of total 16

projected witnesses of the prosecution, only 08 witnesses could

have been examined. He drew attention of this court towards the

order-sheets of the proceedings of learned trial court wherein on

several occasions, the process were issued for appearance of the

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witnesses but they did not turn up. On several occasions, the

Presiding Officer was on leave. The fact regarding issuance of

direction by this court and by Hon'ble Apex Court in the bail orders

as mentioned supra, has also been brought into the notice of trial

Judge which is very much reflecting from the order-sheets.

Counsel submits that looking to the snails pace progress of the

trial which would take further more time to culminate into a

finding of guilt or otherwise and, as such, the fundamental right of

having speedy trial of the accused has been infringed, the bail

deserves to be allowed. Counsel further submits that search and

seizure in this matter was conducted by the Sub-Inspector which

was not authorized as per Section 42 of the NDPS Act and thus

the mandatory provisions of the Act have not been complied with.

He thus prays that in view of judicial pronouncements of the

Hon'ble Apex Court and this court, accused petitioner who is under

incarceration for more than five and half years, deserves to be

enlarged on bail.

Per contra, learned Public Prosecutor submits that the matter

pertains to accusation of commercial quantity of contraband and

thus the bar contained in Section 37 of the NDPS Act would

operate and, therefore, the petitioner is not entitled to be released

on bail.

Heard. Perused the material available on record as well as

the order passed by Hon'ble Apex Court dated 8.1.2021 wherein

while rejecting the bail, a liberty was granted to the petitioner to

renew his prayer if the trial is not concluded within six months.

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As per Section 37 of the NDPS Act, the exercise of power to

grant bail is not only subject to the limitation contained under

Section 439 of the Cr.PC but is also subject to the limitation placed

by Section 37 of NDPS Act which commences with non-obstante

clause. The operative part of the said Section 37 is in the negative

form prescribing the enlargement of bail to any person accused of

commission of an offence under the Act, unless twin conditions are

satisfied. The first condition is that the prosecution must be given

an opportunity to oppose the application; and the second, is that

the court must be satisfied that there are reasonable grounds for

believing that he is not guilty of such offence. If either of these

two condition is not satisfied, the ban for granting bail operates.

The expression "reasonable grounds" means something more than

prima facie grounds.

On the other hand, the Hon'ble Apex Court by way of

plethora of judicial pronouncements has consistently observed

that the liberty guaranteed by the Constitution of India would

cover within its protective ambit not only due procedure and

fairness but also excess to justice and a speedy trial is imperative

and the undertrials cannot indefinitely be detained pending trial.

Once it is obvious that a timely trial would not be possible and the

accused has suffered incarceration for significant period of time,

the courts would ordinarily be obligated to enlarge the accused on

bail. Deprivation of personal liberty without ensuring speedy trial

is not consistent with Article 21 of the Constitution of India.

Timely delivery of justice is part of human rights and denial of

speedy justice is a threat to public confidence in the

administration of justice.

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Now at one hand, there is statutory bar contained in Section

37 of the NDPS Act and on the other hand, the fundamental right

of an accused guaranteed by the Constitution of India. The Courts

are obliged to strike the balance in between two rights, one is

statutory and other is fundamental. The question would arise that

which should be given preference. It is a well known phrase of

criminal jurisprudence that an accused shall be presumed to be

innocent until the guilt is proved. The other is "bail is a rule and

denial is an exception".

It is notable that most of the prosecution witnesses are

public servants being police officials but despite they are not

appearing before the trial court for their examination. This court in

the case of Ganesh Ram Vs. State of Raj. (SBCr.Bail Appl.

No.9568/2015) decided on 1.12.2015 by the Principal Seat at

Jodhpur had directed the Director General of Police, Rajasthan,

Jaipur to appoint a Nodal Officer in every district so that the

process upon the police witnesses could directly be given to the

Nodal Officer by the court and then it would be duty of the Nodal

Officer to produce the witnesses before the trial court for the

purpose of their examination. But it is seen that the direction has

rampantly been flouted and it is apparent that the prosecution has

failed to fulfill the obligation caste upon them to secure the

attendance of the witnesses before the trial court and thus;

because of lackadaisical approach of the prosecution, the accused

petitioner continued to languish in jail for more than five and half

years.

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Here in this case, though the matter pertains to the

accusation of having in possession of 105 kg of poppy husk for

which apart from the plea of not having exclusive and conscious

possession of the contraband, the plea of non-compliance of

mandatory provisions is also made. At the same time, more than

five and half years have elapsed but there appears no possibility

that trial could be culminated in a near short period. The Hon'ble

Apex Court while dismissing the bail plea of the accused petitioner

on 8.1.2021, has noticed this fact that till then the accused had

remained in jail for 04 years & 05 months and, therefore,

directions were passed to conclude the trial within six months

from the date of receipt of copy of the order. While deciding the

earlier bail applications, this court too directed the learned trial

court to expedite the trial. It is emanating from the order-sheet

that the trial court had acquaintance with the orders passed by

this court and the Hon'ble Apex Court in respect of speedy trial.

However, it is a fact that till date only 08 witnesses have been

examined in the trial and it may take further long time to

complete.

After anxious consideration of the facts & circumstances of

this case, statutory bar contained in Section 37 of the NDPS Act

and having conscious of the fundamental right of speedy trial

guaranteed to the accused petitioner, I deem it just and

appropriate to allow the instant bail application.

Accordingly, the third bail application filed under Section 439

Cr.P.C is allowed and it is ordered that the accused-petitioner

Manjeet Singh S/o Sukha Singh shall be enlarged on bail

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provided he furnishes a personal bond in the sum of Rs.1,00,000/-

with two sureties of Rs. 50,000/- 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

SANDEEP RAWAT /23/9

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