Rajasthan High Court - Jodhpur
Subhash @ Surendra Kumar vs State Of Rajasthan (2024:Rj-Jd:8188) on 16 February, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:8188]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 3rd Bail Application No. 1541/2024
Subhash @ Surendra Kumar S/o Madan Lal, Aged About 46
Years, R/o Dhaba Jhallar, Tehsil Suratgarh, Dist. Sri Ganganagar
(Rajasthan)
(At Present Lodged In Sub Jail Suratgarh)
----Petitioner
Versus
State Of Rajasthan
----Respondent
For Petitioner(s) : Mr. Pradeep Sharma
For Respondent(s) : Mr. S.S. Rajpurohit, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
16/02/2024
The present third bail application has been filed by the
petitioner under Section 439 Cr.P.C. The petitioner has been
arrested in connection with FIR No.243/2019, Police Station Sadar
Suratgarh, District Sriganganagar for the offences punishable
under Sections 8/22 & 29 of the NDPS Act.
The second bail application was dismissed on 27.07.2022 by
this Court.
Learned counsel for the petitioner submits that the
statements of Pawan Kumar (PW-1), Digpal Singh (PW-2),
Investigating Officer & Jaipal Singh (PW-3), Seizure Officer have
been recorded before the learned trial Court. He further submits
that till date, only three witnesses have been examined, out of
total sixteen witnesses and trial is yet pending.
[2024:RJ-JD:8188] (2 of 5) [CRLMB-1541/2024]
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
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 the rigours of such provisions will melt
[2024:RJ-JD:8188] (3 of 5) [CRLMB-1541/2024]
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
(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
[2024:RJ-JD:8188] (4 of 5) [CRLMB-1541/2024]
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
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 03.09.2019 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 05 months and
trial is still going on. So far as Section 37 of the NDPS Act is
[2024:RJ-JD:8188] (5 of 5) [CRLMB-1541/2024]
concerned, the embargo put on grant of bail under Section 37 of
the Act is not a total bar. 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 05 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 third bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner -
Subhash @ Surendra Kumar S/o Madan Lal, shall be enlarged on
bail in FIR No.243/2019, Police Station Sadar 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
47-SunilS/-
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