Karim Lala vs State Of Rajasthan ...
2023 Latest Caselaw 8824 Raj

[2023:RJ-JD:36864]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 2nd Bail Application No. 12493/2023

Karim Lala S/o Abdul Rasid, Aged About 30 Years, R/o Naya Bazar, Khari Kuaa, Nimech P.s. Nimech Kent, Dist. Nimech, M.p (At Present Lodged In Sub Jail Jetarain Dist. Pali)

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

----Respondent

For Petitioner(s) : Mr. Ramniwas Bishnoi For Respondent(s) : Mr. Abhishek Purohit, AGA

HON'BLE MR. JUSTICE FARJAND ALI

Order

30/10/2023

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                                228/2017
     2.     Concerned Police Station                  Raipur
     3.     District                                  Pali
     4.     Offences alleged in the FIR               Sections 8/18 of NDPS
                                                      Act.
     5.     Offences added, if any                    ---

6. Date of passing of impugned 27.09.2023 order

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

by a coordinate bench of this Court vide order dated 21.12.2022

with liberty to the petitioner to file afresh after change of any

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

present second bail application is filed.

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

case for the alleged offences is made out against them and their

incarceration is not warranted. There are several flaws and laches

in the case of the prosecution. He is behind the bars since his

arrest on 06.09.2017. There are total 32 witnesses out of which

only 11 could have been examined. It is noticeable that no

witnesses have been examined from 04.02.2023 and the

petitioner has spent a total of almost 6.2 years in imprisonment.

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.

5. Have considered the submissions made by both the parties

and have perused the material available on record.

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6. 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

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. In a number of significant cases like

Vakil Prasad Singh Vs. State of Bihar reported in 2009 3 SCC

355 and Abdul Rahman Antulay Vs. R.S. Nayak reported in

1992 1 SCC 225 wherein Hon'ble the Supreme Court has

discussed and reinforced the fundamental right of an accused to

have a fair and speedy trial.

7. In Rabi Prakash Vs. State of Odisha passed in Special

leave to Appeal (Crl.) No.(s) 4169/2023, Hon'ble the Apex Court

has again passed an order dated 13th July, 2023 dealing this issue

and has held that the provisional liberty(bail) overrides the

prescribed impediment in the statute under Section 37 of the

NDPS Act as liberty directly hits one of the most precious

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fundamental rights envisaged in the Constitution, that is, the right

to life and personal liberty contained in Article 21.

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 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

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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 second 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 the court concerned on all the dates of hearing as and

when called upon to do so.

(FARJAND ALI),J 549-Pramod/-

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