Rajasthan High Court - Jodhpur

Sunil vs State on 27 April, 2022

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

S.B. Criminal Miscellaneous 4th Bail Application No. 4024/2022

Sunil S/o Mohan Ram, Aged About 31 Years, R/o Fatehsagar (Peelwa), Teh. Phalodi, P.S. Lohawat, Dist. Jodhpur (Raj.). (At Present Lodged In Central Jail, Bikaner).

----Petitioner Versus State, Through Pp

----Respondent

For Petitioner(s) : Mr. Lokesh Mathur with Mr. Priyank Kewaliya.

For Respondent(s) : Mr. Shrawan Bishnoi, PP

HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

27/04/2022

The present fourth bail application has been filed under

Section 439 Cr.P.C. on behalf of the petitioner who is in custody in

connection with F.I.R. No.0109/2017, Police Station Gajner District

Bikaner for the offence under Section 8/15 of NDPS Act.

Heard learned counsel for the petitioner as well as learned

Public Prosecutor and also perused the material available on

record.

Counsel for the petitioner submits that the third bail

application of the petitioner was dismissed by this court vide order

dated 19.08.2020. The present fourth bail application has been

filed on the ground that despite repeated directions having been

issued by this court, the trial is not being proceeded and

concluded. Learned counsel for the petitioner further submits that

(2 of 5) [CRLMB-4024/2022]

on 18.01.2019, the learned trial court was directed to expedite the

trial proceedings. After 18.01.2019, when the trial was being

proceeded at a snail's pace, again on 19.08.2020, this court while

rejecting third bail application of the petitioner, direction was

issued that since the petitioner has faced incarceration for more

than three and half years, the trial court was directed to call the

witnesses and expedite the trial proceedings. The counsel further

submits that after the directions having been issued by this court

on two occasions, more than a period of one and a half year has

passed , still the trial proceedings have not been concluded as out

of total 14 witnesses, only 07 witnesses have been examined so

far. Learned counsel has placed on record order sheets of the trial

court to contend that a close reading of the same will show that

the witnesses who are mostly police officials despite having been

summoned by the trial court from time to time, failed to appear

for tendering their evidence before the trial court. The counsel

submits that the trial proceedings are not being concluded on

account of failure of the witnesses in appearing before the trial

court. The witnesses who are not appearing before the trial court

are officials of the police department, therefore, the directions

issued by this court for expediting the trial proceedings could not

be complied with. Learned counsel further submits that the

petitioner has already suffered the incarceration for more than

four and half years. The counsel for the petitioner relies upon a

judgment of three Judges bench of Hon'ble Supreme Court

rendered in the case of Union of India V/s K.A. Najeeb 2021

(3) SCC 713. Learned counsel further submits that casual

approach of the police officials in not appearing before the trial

(3 of 5) [CRLMB-4024/2022]

court for their examination is hampering the trial proceedings

resulting into delay in deciding the case of the petitioner for which

he had to suffer the incarceration. The counsel relies upon the

judgment of Hon'ble Supreme Court in the case of Tapan Das Vs.

Union of India decided on 07.10.2021 and order of coordinate

bench of this court passed in S.B.Criminal Second Bail

Application No.2392/2019 Oma Ram @ Om Prakash V/s

State decided on 06.05.2019 and the observations made by

this court in S.B. Criminal Misc. 3 rd Bail Application No.15198/2021

Manjeet Singh V/s State of Rajasthan decided on 07.12.2021.

Therefore, it is prayed that the petitioner may be enlarged on bail.

Learned Public Prosecutor has filed a reply to the present bail

application. He submits that on account of pandemic of Covid-19

in the country, the witnesses who are police officials could not

appear before the trial court for their examination. Learned Public

Prosecutor is not in position to dispute the fact that the petitioner

has suffered the incarceration for more than four and half years

and the orders passed by this court for expediting the trial

proceedings.

I have considered the submissions made at the bar and gone

through the relevant documents of the case. The petitioner is

facing the trial for an offence under NDPS Act and has suffered the

incarceration for more than four and half years. It is a fact that

learned trial court has summoned the witnesses from time to time

for their examination before the trial court. It is worth noticing

here that mostly the summoned witnesses are police officials

serving in the State of Rajasthan and their non appearance before

the trial court clearly shows defiance and disrespect towards

(4 of 5) [CRLMB-4024/2022]

orders of the trial court. The fact that the country was facing the

pandemic does not absolve the departmental witnesses more

particularly when they are police officials to appear before the trial

court for their deposition especially when the courts were

functioning during this period and thus, this court finds that their

non -appearance before the trial court on the ground of Pandemic

cannot be a reasonable excuse. In the case of Tapan Das decided

on 07.10.2021, the Hon'ble Supreme Court as well as coordinate

benches of this court have taken into consideration that if a

person has suffered the incarceration for more than 4-5 years and

his trial has not been completed, he is entitled to be enlarged on

bail.

The Hon'ble Supreme Court in the case of Union of India

V/s K.A. Najeeb (supra) has observed as under:-

"17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part -III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial".

In view of the discussions made above, this Court deems it

just and proper to release the petitioner on bail.

(5 of 5) [CRLMB-4024/2022]

Accordingly, this 4th bail application filed under Section 439

Cr.P.C. is allowed and it is directed that the petitioner Sunil S/o

Mohan Ram shall be released on bail in connection with F.I.R.

No.0109/2017, Police Station Gajner District Bikaner provided he

executes a personal bond in a sum of Rs.1,00,000/- (Rupees: One

Lac Only) with two sound and solvent sureties of Rs.50,000/-

(Rupees: Fifty Thousand Only) each to the satisfaction of the

learned trial Court for his appearance before that Court on each

and every date of hearing and whenever called upon to do so till