Rajasthan High Court - Jodhpur

Goma Ram Jat vs State Of Rajasthan ... on 18 May, 2023

Bench: Kuldeep Mathur

[2023/RJJD/016046]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
   S.B. Criminal Miscellaneous II Bail Application No. 1600/2023

Goma Ram Jat S/o Laxman Jat, Aged About 43 Years, R/o
Mansha, Police Station Kotdi, District Bhilwara.
(At Present Lodged In District Jail, Bhilwara)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent


For Petitioner(s)         :     Mr.Kailash Chandra Bishnoi.
For Respondent(s)         :     Mr.Mahipal Bishnoi, P.P.



            HON'BLE MR. JUSTICE KULDEEP MATHUR

                                    ORDER

18/05/2023 This second application for bail under Section 439 Cr.P.C. has

been filed by the petitioner who has been arrested in connection

with FIR No.47/2019 registered at Police Station Hamirgarh,

District Bhilwara, for offence under Section 8/15 of the NDPS Act.

Learned counsel for the petitioner submitted that the

contraband (poppy husk/straw) weighing 1117 kg was recovered

in 55 bags from a truck bearing No.RJ06 GB 1463. The petitioner

was driving the aforesaid offending vehicle.

Learned counsel for the petitioner submitted that the FIR

against the petitioner was lodged on 4.4.2019. The investigating

agency after conducting thorough investigation filed a charge-

sheet on 10.10.2019. Thereafter, cognizance against the petitioner

was taken by the competent criminal court on 14.10.2019.

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Learned counsel submitted that first bail application filed on

behalf of the petitioner was rejected as withdrawn on 10.8.2021

with liberty to file a fresh application for bail after recording of the

statement of the seizure officer. Learned counsel submitted that

out of 23 prosecution witnesses, till date only 5 witnesses have

appeared in the witness box before the competent criminal court.

Learned counsel further submitted that the statement of the

investigating officer were recorded on 13.2.2019 while recording

of statements of seizure officer commenced on 23.10.2019.

However, despite repeated summons/bailable warrants, neither

the seizure officer appeared before the trial court for recording of

his statement nor furnished any explanation for his non-

appearance. Learned counsel submitted that in view of the fact

that prosecution witnesses are not turning up for their

examination, there is no likelihood that the trial would be

concluded in near future. Learned counsel urged that other than

the present case, no other case under NDPS Act is pending against

the petitioner and therefore, looking to the

unnecessary/intentional delay caused by the prosecution in

concluding the trial against the petitioner, he deserves to be

enlarged on bail on the ground of delay in conclusion of trial.

Learned counsel for the petitioner further submitted that co-

accused Kana @ Kanhaiya Lal Jat has already been enlarged on

bail by coordinate Bench of this Court vide order dated 18.1.2021

passed in CRLMB No.9554/2020.

Learned counsel for the petitioner placed reliance on

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

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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 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."

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

[2023/RJJD/016046] (4 of 5) [CRLMB-1600/2023]

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."

Per contra, learned Public Prosecutor opposed the bail

application. However, he was not in a position to dispute the fact

that seizure officer has not turned up for examination before the

trial court since 23.10.2019. Learned Public Prosecutor was also in

a position to explain as to why the prosecution witnesses/seizure

officer had not turned up despite repeated orders of the trial

court.

Heard learned counsel for the petitioner and learned Public

Prosecutor. Perused the material available on record.

Having considered the rival submissions, facts and

circumstances of the case, without expressing any opinion on

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