Rajasthan High Court - Jodhpur
Khetsingh vs State Of Rajasthan (2023:Rj-Jd:43079) on 11 December, 2023
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2023:RJ-JD:43079]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 6117/2023
Khetsingh S/o Sh. Unkarsingh Chouhan, Aged About 25 Years,
Matoda/mtoda Thana Matoda, Jodhpur Dist. Jodhpur. (Presently
Lodged At Dist. Jail, Bhilwara).
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. Saleem Khan, PP
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
11/12/2023
This application for bail under Section 439 Cr.P.C. has been
filed by the petitioner who has been arrested in connection with
F.I.R. No.527/2019 registered at Police Station Gulabpura, District
Bhilwara for offence under Section 8/15 of the NDPS Act.
Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the material available on record.
Learned counsel for the petitioner submits that the petitioner
who is behind the bars since 30.12.2019 is entitled to be enlarged
on bail on the ground of prolonged trial. Learned counsel
submitted that as per the prosecution contraband (poppy husk)
weighing 160 kgs was recovered from the conscious possession of
the present petitioner.
In support of his contentions, learned counsel placed reliance
on the order dated 13.07.2023 passed by Hon'ble the Supreme
[2023:RJ-JD:43079] (2 of 4) [CRLMB-6117/2023]
Court in the case of Rabi Prakash vs. The State of Odisha
(Special Leave to Appeal (Crl.) No.4169/2023), wherein
Hon'ble the Supreme Court held as under:-
"3. We are informed that the trial has commenced but
only 1 out of the 19 witnesses has been examined. The
conclusion of trial will, thus, take some more time.
4. As regard to the twin conditions contained in Section
37 of the NDPS Act, learned counsel for the respondent
- State has been duly heard. Thus, the 1st condition
stands complied with. So far as the 2nd condition re:
formation of opinion as to whether there are reasonable
grounds to believe that the petitioner is not guilty, the
same may not be formed at this stage when he has
already spent more than three and a half years in
custody. The prolonged incarceration, generally
militates against the most precious fundamental right
guaranteed under Article 21 of the Constitution and in
such a situation, the conditional liberty must override
the statutory embargo created under Section 37(1)(b)
(ii) of the NDPS Act."
Learned counsel has placed reliance on the judgment dated
28.03.2023 rendered by Hon'ble the Supreme Court in the cases
of Mohd Muslim @ Hussain Vs. State (NCT of Delhi) in
Special Leave Petition (Crl.) No(s).915 of 2023 and Rabi
Prakash Vs. State of Orisa (Leave to Appeal (Criminal)
No.4169/2023 wherein it is observed that delay in trial can also
be considered for releasing accused person on bail despite the
restrictions imposed under Section 37 of the NDPS Act. Learned
counsel for the petitioner has submitted that in the light of the
judgment passed by Hon'ble the Supreme Court in Mohd Muslim
[2023:RJ-JD:43079] (3 of 4) [CRLMB-6117/2023]
@ Hussain's case (supra), the petitioner is entitled to be
enlarged on bail.
Learned counsel submitted that Hon'ble the Supreme Court
has held that if the delay in trial is caused and attributable to the
prosecution, that the petitioner would be entitled to be released
on bail as the same would be amount to violation of right to a
speedy trial.
Drawing attention of this Court towards, the order sheets of
competent criminal court, learned counsel submitted that the
delay in the trial is not attributable to the present petitioner and
till date out of 21 cited prosecution witnesses, statements of only
14 witnesses have been recorded. It was thus prayed that the
benefit of bail may be granted to the accused petitioner.
Per contra, learned Public Prosecutor has opposed the bail
application and stated that looking to the seriousness of the
accusation against the present petitioner, he does not deserved to
be enlarged on bail. Learned Public Prosecutor however, was not in
a position to refute the fact that the delay in trial has not been
caused by the present petitioner, who is in custody since
30.12.2019.
Having considered the rival submissions, facts and
circumstances of the case this court prima facie finds that the
accused is entitled to claim bail on the basis of principles
illustrated by the Hon'ble Supreme Court of India in the case of
Mohd Muslim @ Hussain Vs. State (NCT of Delhi) in Special
Leave Petition (Crl.) No(s).915 of 2023 and Rabi Prakash
Vs. State of Orisa (Leave to Appeal (Criminal)
No.4169/2023. This Court prima facie finds that the delay in
[2023:RJ-JD:43079] (4 of 4) [CRLMB-6117/2023]
trial is caused and attributable to the prosecution and the
prosecution witnesses are not turning up to the witness box
despite repeated summons and notices. Having gone through the
order sheets of the competent criminal court does not find any
material available on record indicating that the petitioner in any
manner is responsible for causing delay in the proceedings/trial of
the case against him, without expressing any opinion on
merits/demerits of the case, this Court is inclined to enlarge the
petitioner on bail.
Consequently, the bail application under Section 439 Cr.P.C.
is allowed. It is ordered that the accused-petitioner Khetsingh
S/o Sh. Unkarsingh Chouhan, arrested in connection with F.I.R.
No.527/2019 registered at Police Station Gulabpura, District
Bhilwara shall be released on bail, if not wanted in any other case,
provided he furnishes a personal bond of Rs.1,00,000/- and two
sureties of Rs.50,000/- each, to the satisfaction of learned trial
court, for his appearance before that court on each & every date
of hearing and whenever called upon to do so till completion of the
trial.
(KULDEEP MATHUR),J
44-Hanuman/-
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