Rajasthan High Court - Jodhpur

Pappa Ram vs Union Of India Through Ncb ... on 12 May, 2023

Bench: Kuldeep Mathur

[2023/RJJD/014953]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 3rd Bail Application No. 851/2022

Pappa Ram S/o Sh. Chokha Ram, Aged About 40 Years, Village Bavarla Police Station Dangiawas Dist. Jodhpur. (At Present Lodged In Central Jail, Jodhpur).

                                                                   ----Petitioner
                                    Versus
Union Of India Through NCB
                                                                 ----Respondent


For Petitioner(s)         :     Mr. Kailash Khilery.
For Respondent(s)         :     Mr. Mahipal Bishnoi, PP.



            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                     Order

12/05/2023

This third 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.VIII(10)04/NCB/JZU/2018 registered at Police

Station NCB, Jodhpur, for offences under Sections 8/18, 25 and 29

of the NDPS Act.

Heard learned counsel for the petitioner as also the learned

Public Prosecutor and perused the material available on record.

Learned counsel for the petitioner submitted that the

petitioner is accused of offences punishable under Sections 8/18,

25 and 29 of the NDPS Act. Learned counsel submitted that the

petitioner is in custody for more than five years and till date, out

of total 16 cited prosecution witnesses, statements of only 7

prosecution witnesses have been recorded. Learned counsel

submitted that the prosecution witnesses have been summoned

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by the learned trial court repeatedly, however, without any valid

reason, they have not appeared before the trial court. To

substantiate aforesaid contention, attention of the Court was

drawn towards various order-sheets of the trial court which

indicate that the testimony of last prosecution witness (PW-7) was

recorded on 15.12.2021. Learned counsel submitted that the

order-sheet clearly reveals that the petitioner is not at all guilty of

delaying the trial.

Lastly, learned counsel submitted that the pace at which trial

is being conducted, the same is not likely to be concluded in near

future. Learned counsel submitted that gravity of punishment and

nature of offence should not influence the Court in any manner so

as to adversely effect the rights of either of the parties.

Learned counsel submitted that the petitioner has been in

incarceration for about five years already. Reliance was placed on

the judgment rendered by Hon'ble the Supreme Court in the case

of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC

713 wherein, while dealing with the cases where fetters are

placed on Court's power to grant bail and the trial has not been

completed within a reasonable time, it was 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 th 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

[2023/RJJD/014953] (3 of 5) [CRLMB-851/2022]

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."

Reliance was also on the order dated 17.03.2023 passed by

coordinate Bench of this Court in the case of Umesh Vyas vs.

State of Rajasthan (S.B. Criminal Misc. II Bail Application

No.14958/2022) wherein, it was observed as follows:

"The Hon'ble Supreme Court in the cases of Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir [Special Leave to Appeal (Crl.) No.3961/2022], Amit Singh Moni Vs. State of Himachal Pradesh (Criminal Appeal No.668/2020), Tapan Das Vs. Union of India [Special Leave to Appeal (Criminal) No.5617/2021], Kulwant Singh Vs. State of Punjab [Special Leave to Appeal (Criminal) No.5187/2019], Ghanshyam Sharma Vs. State of Rajasthan [Special Leave to Appeal (Criminal) No.5397/2019], Nadeem Vs. State of UP [Special Leave to Appeal (Criminal) No.1524/2022] and Mukesh Vs. The State of Rajasthan [Special Leave to Appeal (Criminal) No.4089/2021] has granted bail to the accused persons, against whom the allegations are of transporting or possessing narcotic contraband above commercial quantity, on the ground of custody period and taking into consideration the fact that the trial against the said accused persons will take time in completion. The Hon'ble Supreme Court has ordered for release of the accused persons who were in custody from two years to four years. Learned Public Prosecutor has opposed the bail application.

Having regard to the totality of the facts and circumstances of the case, I deem it appropriate to allow this fifth bail application solely on the ground of custody period of the accused petitioner and keeping in view the fact that the trial against him has not been completed till date.

Accordingly, without expressing any opinion on the merits of the case, this third bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Umesh Vyas S/o Shri Ganeshlal Ji shall be released on bail in connection with FIR No.15/2019 of Police Station Charbhuja, District Rajsamand 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."

[2023/RJJD/014953] (4 of 5) [CRLMB-851/2022]

On these grounds, he implored the Court to enlarge the

petitioner on bail.

Per contra, learned Public Prosecutor has vehemently

opposed the bail application and submitted that petitioner is facing

trial for the offences under the NDPS Act and, therefore, the

present bail application deserves to be rejected straightway.

Learned Public Prosecutor, however, was not in position to refute

the fact that in last five years, out of total 16 prosecution

witnesses, only 7 witnesses have been examined till date.

In the opinion of this Court, no valid justification has been

produced before the Court for non-appearance of the prosecution