Rajasthan High Court - Jodhpur

Mangi Lal vs State Of Rajasthan (2024:Rj-Jd:44105) on 24 October, 2024

Author: Farjand Ali

Bench: Farand Ali

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          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous 5th Bail Application No. 3404/2024

Mangi Lal S/o Birbal Ram, Aged About 21 Years, R/o Ramdawas,
P.s. Pipar City Dist. Jodhpur (At Present Lodged In Central Jail,
Jodhpur).
                                                                      ----Petitioner
                                       Versus
State Of Rajasthan, Through Pp
                                                                    ----Respondent


For Petitioner(s)            :     Mr. Ramniwas
                                   Mr. B.R. Bishnoi
For Respondent(s)            :     Mr. N.K. Gurjar, AAG assisted by
                                   Mr. Rajesh Bhati, AGA
                                   Mr. Ravindra Bhati, AGA



                  HON'BLE MR. JUSTICE FARAND ALI

Order

24/10/2024

1. The jurisdiction of this Court has been invoked by way of

filing the instant 5th application under Section 439 Cr.P.C. at the

instance of accused-petitioner. The requisite details of the matter

are tabulated herein below:

 S. No.                          Particulars of the Case

     2.      Concerned Police Station           Karwad
     3.      District                           Jodhpur

4. Offences alleged in the Section 8/15 NDPS Act FIR

5. Offences added, if any Section 8/29 of the NDPS Act

6. Date of passing of 12.03.2024 impugned order

2. The first, second, third and fourth bail applications being

SBCRLMB Nos.11117/2021, 11915/2021, 3663/2023 &

15156/2023 were dismissed by the Coordinate Bench vide orders

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dated 25.08.2021, 28.09.2021, 21.06.2023 & 04.12.2023. While

deciding the 4th bail application, the trial Court was directed to

complete the evidence of prosecution witness within three months

from the date of passing the order but after that trial is not

progressing.

3. Briefly stated that facts of the case are that on 30.05.2020,

Shri Shravan Kumar, Incharge Special Team, Jodhpur Rural

informed the SHO, PS Karwad that in an Innova Car bearing

registration No.RJ14 TB 6000 coming from Surpur Village some

illegal contraband has been transported. Acting upon the above

information the SHO intercepted the said vehicle and at the

relevant point of time the vehicle was being driven by Mangilal

and another person sitting by his side was Bansi Lal. During

search, 15 plastic bags containing 259 poppy husk came to be

recovered. Whereafter, both the persons were arrested and IO

took samples from the recovered articles and sent the same to the

FSL.

4. It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. 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.

5. Contrary to the submissions of learned counsel for the

petitioner, learned AAG opposes the bail application and submits

that the present case is not fit for enlargement of accused on bail.

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6. I have considered the submissions made by the parties and

have perused the material available on record.

7. Though the fourth bail application of the petitioner was

rejected by this Court vide order dated 04.12.2023 passed in

SBCRLMB No.15156/2023 but the petitioner has filed instant fifth

bail application because out of total 18 witnesses, 8 witnesses

have been examined in the trial till date, thus, looking to the snail

pace progress of the trial, he has again approach this Court for

protecting his liberty.

8. Now it is not in dispute that the petitioner is behind the bar

in this case since 30.05.2020. It is a case of the prosecution that

upon apprehended in suspicious circumstances on 30.05.2020 by

the SHO, P.S. Karwad, Jodhpur Rural, total 15 plastic bags of popy

husk weighing 259 Kg. were recovered from the Innova Car which

was being driven by the petitioner. The charge-sheet has been

filed way back and the trial has also been commenced long ago

but no endeavours have been made to conclude it.

9. It is a firm view of this Court that an under trial prisoner

cannot be incarcerated for an indefinite period. Only a reasonable

time can be granted to the prosecution to prove its case and at

the same time, the accused cannot be left languishing in jail for

want of evidence against him as he required to be presumed

innocent until the guilt is proven.

10. Normally, trial of a sessions case is completed within a period

of one year from its commencement, however, for some

unavoidable and inevitable circumstances, the period can be

extended but keeping the accused detained in jail for around 4 nd

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half years for the purpose of production of evidence is detrimental

to the interest of accused detained in jail.

11. This Court has made an elaborate discussion with regard to

bail of an under trial accused on the ground of delay in

culmination of the trial. This Court feels that if the accused is

under detention, it is obligatory for the prosecution to complete

the trial within a reasonable period. This Court has passed an

elaborated order dated 08.02.2024 in the case of Lichhaman

Ram @ Laxman Ram Vs. State of Rajasthan (S.B. Criminal

Misc. Bail Application No.5916/2023); the relevant part of the

said order is being reproduced as under:-

7. This Court feels that the nature and gravity of offence and availability of material in support thereof are not the only factors to be taken into account while considering a bail application. 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 the 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.

8. As per the fundamental rights granted to every citizen/person 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. An under trial prisoner, who is waiting for the trial to complete and reach a conclusion about his guilt for the alleged crime, is not only deprived of his right to a speedy trial but his other fundamental rights like right to liberty, freedom of movement, freedom of practising a profession or carrying on any occupation, business or trade and freedom to dignity are also hampered.

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12. The Hon'ble Supreme Court vide judgment dated 26.09.2024

passed in V. Senthil Balaji Vs. The Deputy Director,

Directorate of Enforcement [Criminal Appeal

No.4011/2024] has also granted bail to an accused of an

offence under the penal provision of Prevention of Money

Laundering Act. The relevant paras of the said judgment is

reproduced hereunder :-

"24. There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail. By way of illustration, we may refer to Section 45(1)(ii) of PMLA, proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). The provisions regarding bail in some of such statutes start with a non obstante clause for overriding the provisions of Sections 437 to 439 of the CrPC. The legislature has done so to secure the object of making the penal provisions in such enactments. For example, the PMLA provides for Section 45(1)(ii) as money laundering poses a serious threat not only to the country's financial system but also to its integrity and sovereignty.

25. Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a wellsettled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception."

These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time."

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13. In an another case titled as Javed Gulam Nabi Shaikh Vs.

State of Maharashtra & Anr. (Criminal Appeal

No.2787/2024), the Hon'ble Supreme Court vide its order dated

03.07.2024 has made enunciation of the law in this regard and it

would be very apt to reproduce the relevant paras of the said

order hereunder :-

"7 Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects:

(i) The appellant is in jail as an under-trial prisoner past four years;

(ii) Till this date, the trial court has not been able to even proceed to frame charge; and

(iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.

8 Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

9 Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment. 10 In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by

this Court in Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of

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the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

11 The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.

12 Long back, in Hussainara Khatoon v. Home Secy., State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that:

"Now obviously procedure prescribed by law for depriving a person of liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article

21."

13 The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter the court re-

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emphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option :

"The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial."

14 In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023 INSC 311, this Court observed as under:

"21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31 st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State reported in 1993 Cri LJ 3242, as "a radical transformation" whereby the prisoner:

"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self- perception changes."

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23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal" (also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."

15 The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as "the 2008 Act") mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008. 16 A three-Judge Bench of this Court in Union of India v.

K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17)

"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 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 safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or

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for wholesale breach of constitutional right to speedy trial."

17 In the recent decision, Satender Kumar Antil v.

Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:

"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."

18 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

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19 If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

20 We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be. 21 We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution. 22 In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is set aside."

14. 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

fundamental rights envisaged in the Constitution, that is, the

right to life and personal liberty contained in Article 21.

15. Considering the overall facts and circumstances of the case

and the fact that the petitioner is incarcerated from last four and

half years and looking to the fact that there is high probability that

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