Rajasthan High Court - Jodhpur

Gunjan Dudhani vs Union Of India on 14 January, 2022

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Third Bail Application No. 13230/2021

Gunjan Dudhani S/o Subhash Dudhani, Aged About 36 Years, R/o 504, City Apartment, R.K. Chouraha, Sukher Bypass Road, Dist. Udaipur, Rajasthan.

(The Petitioner Presently Lodged In Central Jail, Udaipur).

----Petitioner Versus Union Of India through Directorate of Revenue Intelligent.

----Respondent

For Petitioner : Mr. Vikas Balia (through VC) Mr. Vishan Das Vaishnav (through VC) For Respondent : Mr. Bhanu Pratap Bohra (through VC)

HON'BLE MR. JUSTICE VIJAY BISHNOI

Order

14/01/2022

The petitioner has been arrested in FIR

No.DRI/UZU/JRU/19/INI-4/2016 dated 26.04.2017 of Police

Station Directorate of Revenue Intelligence for the offences

punishable under Sections 22(c), 23(c), 25-A, 27-A, 29 read with

Section 2, 8 and 8-A of Narcotic Drugs and Psychotropic

Substances Act, 1985 and Rules 53-A, 64-A, 65-A, 66 and 67 of

Narcotic Drugs and Psychotropic Substances Rules, 1985. He has

preferred this third bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that the

petitioner has falsely been implicated in this case only because of

the fact that he is the real son of the main accused Subhash

Dudhani. Learned counsel for the petitioner has further submitted

that the prosecution has failed to produce reliable evidence on

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record to suggest that the petitioner was involved in the

commission of crime in any manner.

It is also submitted that the Investigating Agency has filed

charge-sheet against the petitioner on the basis of statement of

one of the witness viz. Rai Singh, who was the watchman of one of

the factory. It is submitted that the said witness, during his

interrogation by the Investigating Agency, has stated that the

petitioner used to visit in the factory, where the tablets containing

narcotic substance were manufactured. Learned counsel for the

petitioner has submitted that another piece of evidence available

on record against the petitioner is his confessional statement

recorded under Section 67 of the NDPS Act. It is further submitted

that the Investigating Agency, without having any evidence

against the petitioner, has involved him in commission of crime

simply on the basis of that he used to handle the business of his

father Subhash Dudhani in India as well as in Abroad.

It is further submitted that watchman Rai Singh has now

been examined before the trial court as PW-16, however, he has

not supported the prosecution story and turned hostile.

Learned counsel for the petitioner has placed reliance on the

decision of Hon'ble Supreme Court rendered in Tofan Singh Vs.

State of Tamil Nadu reported in (2021) 4 SCC 1 and argued

that the Hon'ble Supreme Court has held that an accused in the

NDPS case cannot be convicted simply on the basis of his

confessional statement recorded under Section 67 of NDPS Act

without there being other corroborative evidence.

Learned counsel for the petitioner has further submitted that

the petitioner was arrested on 08.04.2017 and as such he is

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suffering incarceration for last more than four and half years. It is

further submitted that as per the list of witnesses produced by the

prosecution, there are total 96 prosecution witnesses, however,

out of those only 17 prosecution witnesses have been examined

till date. It is, therefore, prayed that the petitioner is entitled to be

enlarged on bail.

Per contra, learned counsel appearing on behalf of the

respondent - UOI through DRI has vehemently opposed the bail

application and submitted that from the evidence collected by the

Investigating Agency, it is clear that the petitioner was one of the

active participant in the commission of crime. It is also submitted

that the huge quantity of tablets containing narcotic substance

above commercial quantity were manufactured in the factory viz.

M/s. Shrinath Industries situated at Udaipur. It is further

submitted that the principle accused Subhash Dudhani was

instrumental in manufacturing the said tablets containing narcotic

substance with the aid of his family members. It is also submitted

that the petitioner is the active participant in the business dealing

and he was very well aware about the fact that his father is

dealing in importing tablets containing narcotic substance as he

was handling the business dealing on behalf of his father in India

as well as in Abroad. It is further submitted that enough evidence

has been collected by the Investigating Agency to conclude that

the petitioner was aware about the manufacturing of the tablets

containing narcotic substance since the beginning as he was

instrumental in establishing the factory where the tablets

containing narcotic substance are being manufactured. It is,

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therefore, prayed that the petitioner is not entitled to be enlarged

on bail.

Heard learned counsel for the parties and perused the

material on record as well as the complaint/charge-sheet filed by

the Investigating Agency.

It is true that the main accused Subhash Dudhani was the

person against whom the charges of manufacturing the tablets

containing narcotic substance has been levelled.

So far as the petitioner is concerned, admittedly he is the

son of the main accused Subhash Dudhani, however, from the

perusal of the charge-sheet, it appears that the prosecution has

recorded his confessional statements under Section 67 of the

NDPS Act and has also recorded statements of some of the

witness, who have stated that the petitioner used to visit the

factory and some of the witness have also confirmed that the

petitioner was handling the account as well as the business

dealing of Subhash Dudhani in India as well as in Abroad.

It is noticed that the Investigating Agency has conducted

raid on the factory premises, where the tablets containing narcotic

substance were manufactured, on 28.10.2016. The raid continued

for several days and huge quantity of tablets containing narcotic

substance were recovered. However, it is not in dispute that at the

time of raid, the petitioner was not present and was arrested only

on 08.04.2017. The petitioner is in jail since last more than four

years and there is no likelihood that the trial against the petitioner

will be concluded in near future as out of 96 prosecution witness

only 17 have been examined.

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      The     Hon'ble     Supreme          Court      in    the     judgment    dated

01.12.2021 rendered in Ashim @ Asim Kumar Haranath & Ors.

Vs. National Investigation Agency (Criminal Appeal

No.1525/2021) has held as under :-

"12. This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access 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 a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail.

13. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, 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."

In the above facts and circumstances of the case, without

expressing any opinion on the merits of the case, I deem it just

and proper to grant bail to the accused petitioner under Section

439 Cr.P.C.

Accordingly, this third bail application filed under Section 439

Cr.P.C. is allowed and it is directed that petitioner - Gunjan

Dudhani S/o Subhash Dudhani shall be released on bail in

connection with FIR No.DRI/UZU/JRU/19/INI-4/2016 dated

26.04.2017 of Police Station Directorate of Revenue Intelligence

provided he executes a personal bond in a sum of Rs.2,00,000/-

with two sound and solvent sureties of Rs.1,00,000/- each to the

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