Gagandeep Kathuriya @ Goldi vs State Of Rajasthan ...
2023 Latest Caselaw 7543 Raj

[2023:RJ-JD:31032]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous 4th Bail Application No. 7620/2023

Gagandeep Kathuriya @ Goldi S/o Shri Naresh Kumar, Aged About 55 Years, R/o 2145 Agrasen Nagar, Ward No. 32, Sri Ganganagar (Raj.) (At Present At Central Jail, Bikaner)

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

----Respondent

For Petitioner(s) : Mr. K V Vyas For Respondent(s) : Mr. Javed Gauri, PP

HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

21/09/2023

The present fourth bail application has been filed under

Section 439 Cr.P.C. The petitioner has been arrested in connection

with FIR No.121/2019 Police Station Suratgarh, District

Sriganganagar for the offences punishable under Section 8/22 of

the NDPS Act.

The third bail application was dismissed on 21.03.2022 by

this Court.

Learned counsel for the petitioner submits that present

petitioner was only an employee in the shop Ayush Medical Store.

Ayush Medical Store purchased the drugs from Kanika Associates,

Bikaner. The owner of Kanika Associates namely Manoj Kumar has

been examined before the trial Court as PW-4 and in his

statement, he specifically mentioned that he purchased the drugs

from Abey Traders on 10.3.2019. Thereafter, he supplied these

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tablets to Ayush Medical Store. The petitioner being an employee

of Ayush Medical Store, on being instructed by the owner of Ayush

Medical Store, went to supply the drugs/tablets to Laxmi Medical

Store. During this period, the present petitioner was detained by

the Police. Furthermore, Investigating Officer (PW-1) admitted

that drugs were supplied by Kanika Associates, Bikaner to Ayush

Medical Store through valid bill. Counsel submitted that trial is

pending for last four and half years, some prosecution witnesses

were summoned through bailable warrant but did not turn up for

their evidence for about three months. Further, there are no

antecedents against the present petitioner.

In support of his contentions, learned counsel placed

reliance on the recent order dated 13.07.2023 passed by Hon'ble

the Supreme Court in the case of Rabi Prakash vs. The State of

Odisha

(Special Leave to Appeal (Crl.) No.4169/2023), wherein Hon'ble

the Supreme Court held as under:-

"3. We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. The conclusion of trial will, thus, take some more time.

4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the

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statutory embargo created under Section 37(1)(b)

(ii) of the NDPS Act."

Hon'ble the Supreme Court in the case of Union of India Vs.

K.A. Najeeb reported in (2021) 3 SCC 713, 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,

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 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."

A 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), vide order dated 17.03.2023, also 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

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(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."

Learned counsel for the petitioner has further placed reliance

on the decision dated 28.03.2023 rendered by Hon'ble the

Supreme Court in Mohd Muslim @ Hussain Vs. State (NCT of

Delhi) in Special Leave Petition (Crl.) No(s).915 of 2023,

wherein it is observed by the Hon'ble Supreme Court that delay in

trial can also be considered for releasing accused person on bail

despite the restrictions imposed under Section 37 of the NDPS Act

and in the light of the judgment passed by the Hon'ble Supreme

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Court in Mohd Muslim @ Hussain's case (supra), the petitioner is

entitled to be enlarged on bail.

The petitioner is in the judicial custody since 17.03.2019 i.e.

almost four and a half years and the trial of the case will take

sufficiently long time. Therefore, the benefit of bail may be

granted to the accused-petitioner.

Learned Public Prosecutor has submitted that recovered

contraband is commercial quantity, therefore, benefit of bail may

not be granted to the petitioner.

I have considered the arguments advanced before me and

gone through the material available on record.

It is not disputed that the accused petitioner has so far

suffered incarceration of more than 4 years and 06 months and

trial is still going on. No other case of the offence under the NDPS

Act has been registered against him. So far as Section 37 of the

NDPS Act is concerned, the embargo put on grant of bail under

Section 37 of the Act is not total. In the provision, certain

exceptions exist within Section 37 itself and for those exceptions,

bail can be granted. In the present case, the petitioner has so far

suffered incarceration of more than 4 years and 06 months,

therefore, looking to the prolonged custody of the petitioner it

would not be appropriate to invoke the rigor envisaged under

Section 37 of NDPS Act.

Accordingly, the fourth bail application under Section 439

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

Gagandeep Kathuriya @ Goldi S/o Shri Naresh Kumar, shall be

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enlarged on bail in FIR No.121/2019 Police Station Suratgarh,

District Sriganganagar provided he furnishes a personal bond in

the sum of Rs.2,00,000/- with two sureties of Rs.1,00,000/- 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.

(MANOJ KUMAR GARG),J 64-raksha/-

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