Manak Chand vs State Of Rajasthan ...
2023 Latest Caselaw 9078 Raj

[2023:RJ-JD:38799]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 12449/2023

Manak Chand S/o Bhanwar Ram Kumhar, Aged About 47 Years, R/o Kanasar Ps Bichhwal Dist. Bikaner At Present Lodged In Dist. Jail Chittorgarh

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. B. R. Bishnoi For Respondent(s) : Mr. Mahipal Bishnoi, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

04/11/2023

1. The jurisdiction of this court has been invoked by way of

filing an instant application under Section 439 CrPC at the

instance of accused-petitioner. The requisite details of the matter

are tabulated herein below:

S.No.                           Particulars of the Case
     1.     FIR Number                                96/2020
     2.     Concerned Police Station                  Shambhupura
     3.     District                                  Chittorgarh
     4.     Offences alleged in the FIR               Sections 8/15 and 25 of
                                                      NDPS Act.
     5.     Offences added, if any                    Sections 8/29 of NDPS
                                                      Act.

6. Date of passing of impugned 02.09.2023 order

2. The Second bail application of petitioner came to be

dismissed as not pressed by a this Court vide order dated

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28.08.2023. Now, seizure officer has been examined, hence the

present second bail applications are filed.

3. It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. There are several flaws and laches

in the case of the prosecution. He submits that the contraband

was recovered on 03.11.2021 and the samples were taken on that

same day, however, the samples were sent for FSL were sent after

14 days. He submits that there are major discrepancies in the

weight of the alleged recovered contraband recorded at different

stages; at the time of recovery; when the inventory was prepared

by the Judicial Magistrate which cast serious doubts regarding the

actual weight of the contraband. The appellant is in custody since

last three years and he placed reliance on the Petition(s) for

Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal

Ainani Vs. State of Rajasthan & Anr., wherein it was held vide

order dated 15.11.2021 that looking to the prolonged custody

period of the petitioner, bail shall be granted to him in that matter.

In another landmark judgment of Satender Kumar Antil vs.

Central Bureau of Investigation and Ors. reported in AIR

2022 SC 3386, the aforesaid aspect has been reiterated. There

are no factors at play in the case at hand that may work against

grant of bail to the accused-petitioner and he has been made an

accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

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and submits that the present case is not fit for enlargement of

accused on bail.

5. Have considered the submissions made by both the parties

and have perused the material available on record.

6. The circumstances created by the Police team in this matter

bring the recovery into doubt. A bare perusal of the on-oath

statement of SHO reveals that he did not send samples to the FSL

within the stipulated time. In the case at hand, not even a single

step of the process of seizure and sampling in an NDPS case has

been done as per the mandate of law and the statutory provisions.

As per the statutory provisions, Standing Orders issued in this

regard as well as the judicial pronouncements laid down by

Hon'ble the Apex Court, the process should ideally start from

seizure and after that, preparation of inventory and then it should

lead to sampling and forwarding of samples to the FSL. In the

matter at hand, neither was the inventory prepared on time nor

were the samples sent after certification. This court has passed a

detailed order dated 02.11.2023 in S.B. Criminal Misc. III Bail

Application No. 8738/2023 titled Ladhu Ram Vs. State of

Rajasthan dealing with similar issues. In light of the said order,

the present seems to be a fit case for enlargement of accused on

bail.

7. The nature and gravity of offence and availability of material

in support thereof are not the only factors to be considered while

granting bail. The fact that trial is to be concluded within a

reasonable period of time is imperative while considering grant of

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bail to an accused. It is settled principle of criminal jurisprudence

that there is presumption of innocence at the pre-conviction stage

and the objective for keeping a person in jail is to ensure his

presence to face trial and to receive the sentence that may be

passed. This detention is not supposed to be punitive or

preventive in nature. An accused is considered to be innocent until

he or she or they are proven guilty in the court of law. As per the

fundamental rights granted to every citizen by the Constitution of

India, the accused cannot be expected to languish in custody for

an indefinite period if the trial is taking unreasonably long time to

reach the stage of conclusion.

8. In view of the guidelines propounded by Hon'ble the

Supreme Court in the case of Satender Kumar Antil (supra) on

the subject of bail on the ground of long period of incarceration,

the sentence of the present applicant deserves to be suspended.

The relevant paragraphs of the afore-mentioned judgment are as

follows:-

"41.Sub-section (2) has to be read along with Sub-

section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent

[2023:RJ-JD:38799] (5 of 6) [CRLMB-12449/2023]

possible, an unexplained, avoidable and prolonged delay in concluding atrial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436 A of the Code which stands on a different footing.

42. ......

43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436 A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436 A of the Code among other factor sought to be considered for a favourable release on bail."

9. This Court is cognizant of the provision contained in Section

37 of the NDPS Act but considering the submissions made by

learned counsel for the accused-petitioner regarding his long

incarceration, this court is of the opinion that it is a fit case for

grant of bail to the accused petitioner.

10. Accordingly, the third bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner shall

be enlarged on bail provided he furnishes a personal bond in the

sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the

satisfaction of the learned trial Judge for his appearance before

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the court concerned on all the dates of hearing as and when called

upon to do so.

(FARJAND ALI),J 44-Mamta/-

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