Rajasthan High Court
Sunil Kumar S/O Hariram vs Union Of India on 27 February, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous II Bail Application No. 14873/2023
Sunil Kumar S/o Hariram, R/o Bhojasar, Post Aau, Tehsil Phalodi,
District Jodhpur (Rajasthan) (Presently Confined In Central Jail,
Ajmer)
----Petitioner
Versus
1. Union of India, NCB, through Special Public Prosecutor.
2. Rajesh Kumar, Junior Information Officer, Narcotic Control
Bureau, Sub Regional Unit, Ajmer.
----Respondents
For Petitioner(s) : Ms. Anushree Sharma
For Respondent(s) : Mr. Inderjeet Deora, on behalf of
Mr. Tej Prakash Sharma, Spl. PP for
NCB
Mr. Yeshwant Kankhadia, PP
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
ORDER
DATE OF PRONOUNCEMENT :: 27/02/2024
This second application for bail under Section 439 Cr.P.C. has
been filed on behalf of the petitioner, who is in custody since
20.05.2020 in connection with Case
No.VIII(IO)/01/NCB/ASZ/2020 registered at Police Station NCB,
Ajmer for offences under Sections 8/18, 25 & 29 of the NDPS Act.
The first bail application (No.8209/2023) filed on behalf of
the petitioner was dismissed as withdrawn by this Court vide order
dated 11.10.2023 while giving liberty to the petitioner to renew
the prayer for bail after recording statement of the seizure officer.
(2 of 5) [CRLMB-14873/2023]
The statement of the seizure officer has been recorded at trial,
hence, this second bail application.
Learned counsel for the petitioner submits that the petitioner
has falsely been implicated in this case. She submits that the
provisions of Sections 42, 50 and Sub Section (2) of 52A of the
NDPS Act have not been followed properly and as a result
whereof, the entire alleged recovery is vitiated. Apart from that,
she argues that the petitioner is in custody since 20.05.2020 and
as such, till date, he has suffered incarceration of nearly three
years and nine months whereas trial will take long time in its
conclusion as only two witnesses have been examined at trial. She
submits that period of custody is always relevant consideration for
grant of bail. It is also submitted by her that the petitioner does
not have any criminal antecedents under the NDPS Act. She has
placed reliance upon the following judgments passed by Hon'ble
Apex Court as well as of this Court in which period of incarceration
has been considered relevant for grant of bail:-
1. Raju Ram vs State of Bihar : (2023) 1 Supreme 670
2. Abdul Majeed Lone Vs. Union Territory of Jammu and
Kashmir (Special Leave to Appeal (Crl.) No.3961/2022
3. Amit Singh Moni Vs. State of Himachal Pradesh : Crimial
4. Tapan Das vs. UOI (Special Leave to Appeal (Criminal)
5. Ghanshyam Sharma vs. State of Rajasthan (Special Leave to
Appeal (Criminal) No.5397/2019
6. Nadeem vs State of UP (Special Leave to Appeal (Criminal)
(3 of 5) [CRLMB-14873/2023]
7. Suresh Kumar vs State of Rajasthan (S.B. Criminal Misc. 3rd
Bail Application No.16118/2022, decided on 04.01.2023)
8. Govind vs State of Rajasthan (S.B. Criminal Misc. 2nd Bail
Application No.426/2023, decided on 17.02.2023)
It is submitted that in all these cases, bail was granted only
on the ground of period of incarceration. She submits that in the
case of Raju Ram (supra), it has been held that on the basis of
period of incarceration, bail can be granted by relaxing the
provision of Section 37 of the NDPS Act.
Per contra, leaned counsel representing NCB as well as
learned Public Prosecutor oppose the bail application and submit
that contraband opium weighing 41.040 Kgs. was recovered from
the vehicle (Truck No. RJ 19 GG 2359), in which the petitioner was
sitting on the cleaner seat. The recovered contraband is
commercial quantity and considering the rigour of Section 37 of
the NDPS Act, bail should not be granted.
I have heard and considered the submissions advanced at
bar and perused the material available on record.
The contention of leaned counsel for the petitioner regarding
non-compliance of Sub-Section 2 of Section 52A of the NDPS Act,
prima facie, is not convincing to this Court. However, it is an
admitted position on record that the petitioner is in custody since
20.05.2020 and thus, he has suffered incarceration of nearly 3
years and 9 months till date. It also appears from the record that
(4 of 5) [CRLMB-14873/2023]
till date, only two witnesses have been examined at trial and thus,
the fundamental right of the petitioner of speedy trial is also being
violated. Prolonged incarceration, generally militates against the
most precious fundamental right guaranteed under Article 21 of
the Constitution of India and in such a situation, the conditional
liberty must override the embargo contained under Section 37 of
the NDPS Act. The Hon'ble Apex Court has granted bail to different
accused persons by considering the period of incarceration of
about two years or more.
Considering the overall facts and circumstances of the case
especially the fact that the petitioner is in custody since
20.05.2020, and till date, only one witness has been examined so
far, and in similar fact situation, benefit of bail has been extended
to the accused persons by the Hon'ble Apex Court as well as by
this Court who have suffered incarceration of 2 years or more
without commenting anything on the merits/demerits of the case,
I deem it just and proper to accept the instant bail application.
Thus, this second bail application is allowed and it is directed
that accused petitioner Sunil Kumar S/o Shri Hariram, arrested in
connection with Case No.VIII(IO)/01/NCB/ASZ/2020 PS NCB
Ajmer shall be released on bail provided he furnishes a personal
bond in the sum of Rs.50,000/- together with two sureties in the
sum of Rs.25,000/- each to the satisfaction of the learned trial
court with the stipulation that he shall appear before that Court
and any court to which the matter is transferred, on all
(5 of 5) [CRLMB-14873/2023]
subsequent dates of hearing and as and when called upon to do
so.
Before accepting the bail bonds of the accused petitioner, the
learned trial court shall verify the fact that the petitioner does not
have any criminal antecedents under the NDPS Act and in case,
upon verification, if it is found that the petitioner has previous
criminal antecedents under NDPS Act, his bail bonds shall not be
accepted. It is also made clear that the petitioner shall not involve
in similar offence(s) during pendency of bail granted by this Court.
The petitioner is further directed to mark his presence in the
concerned police station on first Monday of every month, till trial is
concluded. If breach of any of these conditions is reported or
come to the notice of the Court, the same shall alone be a reason
for the trial court to cancel the bail granted to him by this Court.
(ANIL KUMAR UPMAN),J
Sudhir Asopa/
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