Rajasthan High Court - Jodhpur

Jagdish vs Union Of India Through Cbn on 2 January, 2023

Bench: Vinit Kumar Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 6679/2022

Jagdish S/o Ghishu Lal Dhakar, Aged About 51 Years, R/o Badavali, P.s. Kanera, District Chittorgarh. (At Present Lodged In District Jail, Chittorgarh)

----Petitioner Versus Union Of India Through Cbn, Through Cbn.

                                                                ----Respondent


For Petitioner(s)        :     Mr. Bhagirath Bishnoi
                               Mr. Vijay Jani
                               Mr. Tanuj Jain
For Respondent(s)        :     Mr. N.K. Rai, Sp. PP



          HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

                                    Order

02/01/2023

The present second 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.09/2017 Police Station CBN Nimach for

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

Heard learned counsel for the petitioner as well as learned

Public Prosecutor and also perused the material available on

record.

After the rejection of the first bail application on 23.04.2021,

statement of two prosecution witnesses were recorded before the

learned trial court. Learned counsel for the petitioner submits that

the petitioner is facing incarceration for more than five years and

statements of only two prosecution witnesses have been recorded.

He further submits that after the arrest of the other co-accused

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persons in the present case, the trial has been started de novo. He

submits that the prosecution witnesses who have already been

examined will be re-summoned in the present case. He submits

that the trial is not likely to be concluded in the near future as

there are more than sixteen prosecution witnesses whose

testimony will be recorded before the trial court. Learned counsel

for the petitioner submits that as per the order-sheets produced

before this Court, it is more than clear that they have not taken

any adjournment before the trial court.

Learned counsel further submits that recently the Hon'ble

Supreme Court in the case of Rahul Vs. State of Rajasthan decided

on 01.11.2022 has granted bail to the petitioner on the ground

that the petitioner was in custody for more than 4 years and trial

was not likely to be concluded in near future. Even in that case

also, the contraband recovered was more than the commercial

quantity.

Learned counsel further submits that the petitioner has

already suffered the incarceration for more than five 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 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

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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. 3rd Bail

Application No.15198/2021 Manjeet Singh V/s State of

Rajasthan decided on 07.12.2021. Therefore, it isprayed that the

petitioner may be enlarged on bail.

Learned Special Public Prosecutor has filed reply to the

present bail application and submits that huge quantity of

contraband has been recovered in the present case and merely

because the petitioner has suffered incarceration for more than

five years should not be a ground for enlargement on bail by this

court. He submits that the Hon'ble Supreme Court in the case of

Narcotics Control Bureau Vs. Mohit Aggarwal has

categorically held that since the petitioner was involved in the

recovery of huge quantity of contraband, therefore, he cannot be

let out on the length of his custody period. He submits that the

petitioner should not be given benefit of enlargement on bail on

the ground of the period spent by him in jail during the pendency

of trial.

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 five 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 orders of the trial

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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 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.

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Accordingly, the present second bail application filed under

Section 439 Cr.P.C. is allowed and it is directed that the petitioner

Jagdish S/o Ghishu Lal Dhakar shall be released on bail in

connection with F.I.R. No.09/2017 Police Station CBN Nimach

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