Rajasthan High Court - Jodhpur
Jaydev vs State Of Rajasthan (2024:Rj-Jd:10648) on 4 March, 2024
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2024:RJ-JD:10648]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 1349/2024
Jaydev S/o Bhagchand, Aged About 32 Years, R/o Jegla, Police
Station Panchu At Present R/o Morden Market, Wakilo Ki Gali,
Bikaner, Police Station Kotgate,district Bikaner. (At Present
Confined In Sub Jail Raisingh Nagar)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ramniwas Bishnoi
For Respondent(s) : Mr. Mukesh Trivedi, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
04/03/2024
The present second bail application has been filed under
Section 439 Cr.P.C. The petitioner has been arrested in connection
with FIR No.138/2020 Police Station Srivijaynagar, District
Sriganganagar for the offences punishable under Sections 8/18,
25 and 29 of the NDPS Act. The first bail application was
dismissed as not pressed on 27.09.2023 by this Court.
Learned counsel for the petitioner submits that upto this
time only three prosecution witnesses out of thirteen have been
cited in the witness list before the trial Court. Counsel further
submits that co-accused Dashrath and Kapil have already been
enlarged on bail and the case of present petitioner is not
distinguishable from that of co-accused. 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
[2024:RJ-JD:10648] (2 of 5) [CRLMB-1349/2024]
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 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
[2024:RJ-JD:10648] (3 of 5) [CRLMB-1349/2024]
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
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
[2024:RJ-JD:10648] (4 of 5) [CRLMB-1349/2024]
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 04.07.2020 i.e.
more than three 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 3 years and trial is still going
on. 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
[2024:RJ-JD:10648] (5 of 5) [CRLMB-1349/2024]
case, the petitioner has so far suffered incarceration of more than
3 years, 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 second bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner -
Jaydev S/o Bhagchand, shall be enlarged on bail in FIR
No.138/2020 Police Station Srivijaynagar, 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
120-Ishan/-
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