Rajasthan High Court - Jodhpur
Kanhaiya Lal Nath vs N.C.B on 12 May, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3173/2022
Kanhaiya Lal Nath S/o Shri Tarachand Nath, Aged About 30
Years, R/o Redi Bhurawas, Tehsil Taranagar, District Churu.
(Presently Confined In Central Jail, Jodhpur)
----Petitioner
Versus
N.c.b., Through Special Pp
----Respondent
For Petitioner(s) : Dr. Himmat Singh Shekhawat
For Respondent(s) : Mr. MR Pareek, Spl. PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
12/05/2022
Heard learned counsel for the parties on third bail appliation
no.3173/2022.
The brief facts of the case are that on a secret information
received on 17.04.2017 regarding trafficking of contraband likely
to take place on 18.04.2027 at about 3:00 am, the NCB Team
reached at Dangiyawas Bye-pass and stopped a Container. The
Container was sealed with seal of Hitachi 12916, which on being
broken, 87 bags of poppy straw (Doda Post) were found concealed
behind AC kit boxes. Upon which, NCB team arrested the appellant
and ultimately a challan was filed under Section 8, 15, 25, & 29 of
NDPS Act.
The earlier bail application of petitioner was dismissed by
this Court on 11.08.2020 on merits.
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In the present bail application, Dr. Shekhawat, counsel for
the petitioner, has not argued the case on merits but has simply
sought bail on the ground that petitioner has suffered
imprisonment of about five years and a month before his
conviction.
On earlier occasion this Court asked counsel for the
petitioner to give specific detailed information regarding the stage
of trial.
Today, counsel for the petitioner has drawn attention of this
Court to the information which reflects that there are in all 11
prosecution witnesses are to be examined during trial, out of
which, evidence of PW-1 Vishal Panwar, Superintendent NCB,
Jodhpur; PW-2 Rameshwar Das, Intelligence Officer, Jodhpur; PW-
3 Om Prakash, Independent witness; PW-4 Sunil Sen, independent
witness and PW-5 Avinash Panda, witness regarding call details
have been examined and evidence of 06 prosecution witnesses is
yet to be examined i.e. Banshi Lal Jat, Intelligence Officer, NCB
Jodhpur (witness of seizure); Jagveer Singh, Constable, NCB,
Jodhpur team, member of seizure who deposited the sample in
FSL; Rajesh Tripathi, Nodal Officer, Vodafone Jaipur; Ramesh
Singh Bisht, Nodal Officer, Idea Jaipur; Smt. Kaushalya Devi and
Sukhveer Singh, Intelligence Officer, NCB Jodhpur (I.O. and
complainant).
Counsel for the petitioner, thus, submits that until now less
than half of prosecution witnesses have been examined and the
completion of trial is likely to take a long time, thus, prayed to
release the petitioner on bail.
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Counsel for the petitioner has relied upon the judgments
of :-
(i) Hon`ble Apex Court in Tapan Das Vs. Union of
India in Petition for Special Leave to Appeal (Crl.)
No.5617/2021 on 07.10.2021; and
(ii) Co-ordinate Bench of this Court in Girdhar Ram Vs.
Union of India, through NCB (S.B. Criminal Misc. Third
Bail Application No.5749/2021, decided on 08.01.2021.
Mr. MR Pareek, learned Special PP, vehemently opposed the
bail application on the ground that the offence is henious one and
large quantity of contraband has been recovered and releasing of
the petitioner on bail will have a negative impact on the ongoing
trial.
Learned Special PP has relied upon para-1 of the judgment of
Hon'ble Apex Court in Thana Singh Vs. Central Bureau of
Narcotics reported in (2013) 2 SCC.
"1. This order, and its accompanying directions, are an outcome of the bail
matter in Thana Singh Vs. Central Bureau of Narcotics listed before this
bench, wherein an accused, who had been languishing in prison for more
than twelve years, awaiting the commencement of his trial for an offence
under the Narcotics Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as the "NDPS Act"), was consistently denied bail,
even by the High Court. Significantly, the maximum punishment for the
offence the accused was incarcerated for, is twenty years; hence, the
undertrial had remained in detention for a period exceeding one-half of
the maximum period of imprisonment. An express pronouncement of this
Court in the case of Supreme Court Legal Aid Committee Representing
Undertrial Prisoners Vs. Union of India & Ors.[1], which held that
"where the undertrial accused is charged with an offence(s) under the Act
punishable with minimum imprisonment of ten years and a minimum fine
of rupees one lakh, such an undertrial shall be released on bail if he has
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been in jail for not less than five years provided he furnishes bail in the
sum of rupees one lakh with two sureties for like amount", finds
constrained applicability in respect of cases under the NDPS Act, in light
of Section 37 of the Act. Therefore, this Court in Achint Navinbhai Patel
Vs. State of Gujarat & Anr.[2] observed that "it has been repeatedly
stressed that NDPS cases should be tried as early as possible because in
such cases normally accused are not released on bail."
Learned Special PP upon being asked as to status of trial
could not refute the information provided by counsel for the
appellant.
This Court after hearing counsel for the parties and perusing
the record is of the firm opinion that this is a case of constrained
applicability as the exception of Section 37 of NDPS Act. The
judgment of Tapan Das (supra) and that of the Co-ordinate Bench
of this Court are directly applicable.
This Court has ascertained before granting bail by calling for
the information on previous date of hearing i.e. 05.05.2022, which
has been furnished and it satisfies this Court that the trial of case
is likely to take a long time. In case the preposition reflected fag
end or last stage of trial, then this Court could have considered
rejecting the bail application, however, taking into account the
parameters of liberty of an individual as well as the precedent law
cited by counsel for the petitioner, this Court finds that the same
are applicable to the present case as there are in all 11
prosecution witnesses, out of whom 05 have been examined and
06 witnesses are yet to be examined and thereafter evidence of
defence witnesses shall be required to be examined. It is
unfortunate fact that out of the 06 prosecution witnesses, who are
yet to be examined
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i.e. Banshi Lal Jat, Intelligence Officer, NCB Jodhpur (witness of
seizure); Jagveer Singh, Constable, NCB, Jodhpur team and
Intelligence Officer, NCB Jodhpur (I.O. and complainant) belonging
to the respondent-NCB Department placed at Jodhpur and even
their witness is yet to be recorded. This shows lackadaisical
attitude of the respondents in carrying on with the trial. In the
present scenario trial is not only being delayed but suffers from
carelessness on the part of respondents to get the trial completed,
thus, benefit of this has to be given to the petitioner in the given
circumstance.
Accordingly, this third bail application filed under Section
439 Cr.P.C. is allowed and it is directed that petitioner Kanhaiya
Lal Nath S/o Shri Tarachand Nath shall be released on bail in
connection with FIR No. VIII(IO)05/NCB/JZU/2107 registered at
P.S. NCB, Jodhpur provided he executes a personal bond in a sum
of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/-
each to the satisfaction of learned trial court for his appearance
before that court on each and every date of hearing and whenever
called upon to do so till the completion of the trial.
(DR.PUSHPENDRA SINGH BHATI), J.
101-Sanjay/-
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