Mohan Banodha vs Union Of India ...
2023 Latest Caselaw 7761 Raj

Citation : 2023 Latest Caselaw 7761 Raj
Judgement Date : 3 October, 2023

Rajasthan High Court - Jodhpur

Mohan Banodha vs Union Of India ... on 3 October, 2023

Bench: Farjand Ali

[2023:RJ-JD:32439]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 5152/2023

Mohan Banodha S/o Amba Lal Banodha, Aged About 34 Years, W.no. 23, Water Box Road, Jaatiyawaas, Ps Kotwali Pratapgarh, Dist. Pratapgarh (Raj.). (Presently Lodged In Dist. Jail, Chittorgarh).

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

----Respondent

For Petitioner(s) : Mr. Yogendra Singh Charan For Respondent(s) : Mr. K. S. Nahar, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

03/10/2023

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                                  01/2019
     2.     Concerned Police Station                    CBN
     3.     District                                    Chittorgarh
     4.     Offences alleged in the FIR                 Sections 8/15 of NDPS
                                                        Act.
     5.     Offences added, if any                      ---

6. Date of passing of impugned 16.01.2023 order

2. The first bail application of petitioner came to be dismissed

by a coordinate bench of this Court vide order dated 11.08.2020

with liberty to the petitioner to file afresh after the statement of

[2023:RJ-JD:32439] (2 of 5) [CRLMB-5152/2023]

seizure officer is recorded in trial. Now, seizure officer has been

examined, hence the present second bail application is 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. He submits that the sanctity of the

seizure made at the office of Superintendent CBN, Chittorgarh is

highly doubtful and no explanation furnished by the team

members as to why the search and seizure was not made at the

place where the vehicle was intercepted and why the seizure was

conducted/carried out around 14 kms away from the place where

the vehicle was intercepted. He is behind the bars since last four

and a half years. 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

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

accused on bail.

[2023:RJ-JD:32439] (3 of 5) [CRLMB-5152/2023]

5. Have considered the submissions made by both the parties

and have perused the material available on record.

6. The statement of the seizing officer recorded under Section

164 of Cr.P.C. reveals that the process of seizure was conducted at

the Office of Superintendent CBN, Chittorgarh instead of the place

where the interception took place and the same is corroborated by

the Panchnama Japti. It is not comprehensible as to what was the

need to conduct the seizure at a place located 14 kms away from

the place where the vehicle was intercepted; that too, at the

premises of Office of Superintendent CBN, Chittorgarh even

though the police station, Sadar Chittorgarh was located before

the CBN office and no reasonable explanation has been furnished

for the same.

7. 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

[2023:RJ-JD:32439] (4 of 5) [CRLMB-5152/2023]

Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent 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."

8. 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 which almost amounts to half of the total sentence

awarded to him, this court is of the opinion that it is a fit case for

grant of bail to the accused petitioner. Needless to say, none of

the observations made herein under shall affect the rights of

[2023:RJ-JD:32439] (5 of 5) [CRLMB-5152/2023]

either of the parties during trial and this Court refrains from

commenting on the niceties of the matter.

9. Accordingly, the instant bail application under Section 439

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