Rajasthan High Court - Jodhpur

Vishal vs State Of Rajasthan (2025:Rj-Jd:12236) on 4 March, 2025

Author: Farjand Ali

Bench: Farjand Ali

[2025:RJ-JD:12236]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous III Bail Application No. 1885/2025

Vishal S/o Shri Kishor, Aged About 24 Years, R/o Gadola, Tehsil
Pratapgarh , P.s. Rathajana, Dist Pratapgarh (Raj) (Presently
Lodged In Dist Jail Pali)
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Ashok Khilery
For Respondent(s)           :     Mr. Vikram Rajpurohit, DyGA



                  HON'BLE MR. JUSTICE FARJAND ALI

Order

04/03/2025

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

filing the third bail application under Section 439 CrPC 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                  Rohat
     3.     District                                  Pali
     4.     Offences alleged in the FIR               Section 8/17 and 18 of
                                                      the NDPS Act
     5.     Offences added, if any                    Section 8/29 of the NDPS
                                                      Act
     6.     Date of passing of impugned -
            order

2. It is contended on behalf of the accused-petitioner that co-

accused Vishal S/o Parmendra has been enlarged on bail by this

court vide order dated 21.01.2025 and the case of the present

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petitioner is not at all distinguishable from the said accused. He

further submits that no case for the alleged offences is made out

against him and his incarceration is not warranted. There are

several flaws and latches in the case of the prosecution. 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.

4. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

and submits that the present case is not fit for enlargement of

accused on bail.

5. I have heard and considered the submissions made by both

the parties and perused the material available on record.

6. It is emanating from the record that SHO, Police Station

Rohat, District Pali, alongwith his team on 30.04.2022 intercepted

a Motor Cycle which was driven by Vishal S/o Kishore and Vishal

S/o Parmendra was his pillion rider who was having a white bag in

his hand wherein 5 plastic bags containing 4 Kg 110 gram opium

milk got recovered. After seizure the petitioner and co-accused

got arrested and a case under the NDPS Act was registered

against them. After investigation, charge sheet has been filed in

the Court concerned. Similarly situated co-accused Vishal S/o

Parmendra has been enlarged on bail by this court and the case of

the present petitioner stands on identical footing.

7. This Court feels that an under trial prisoner should not be

kept confined for an indefinite period for no fault of them in

impeding the course of trial. A perusal of the material revealing

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that the trial had been commenced in this matter in the year 2022

but owing to one or the other reason, the recording of the

prosecution witnesses could not be completed. It is transpiring

that out of the total 23 projected prosecution witnesses, only 7

could have been examined uptill now. This Court feels that

looking to the snail's pace progress of the trial, it would still take

a long time to reach onto a legitimate conclusion. It is also

noticed that sincere endeavors have not been made by the trial

Court in proceeding with the trial to get an early culmination of

the same.

8. This Court observes that the nature and gravity of the offence,

alongside the evidentiary materials presented, are not the sole

determinants in adjudicating a bail application. The expeditious

conclusion of the trial within a reasonable time-frame is an

essential consideration when deliberating the grant of bail to an

accused. It is a well-entrenched principle of Criminal

Jurisprudence that the presumption of innocence remains

operative at the pre-conviction stage. The primary objective of

incarcerating an accused pre-trial is to secure their presence for

trial and to ensure that he/she/they are available to serve the

sentence imposed upon him/her/them. Such detention is not

intended to be punitive or preventive in nature and an accused

cannot be detained for an indefinite period as an individual is

presumed innocent until proven guilty by a Court of law.

9. In adherence to the fundamental rights enshrined in the

Constitution of India, it is impermissible to subject an accused to

indefinite incarceration if the trial is protracted beyond reasonable

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limits. An under-trial prisoner, awaiting the conclusion of the legal

process to ascertain their culpability, is deprived of the right to a

speedy trial. This delay impinges upon several fundamental rights,

including the right to liberty, freedom of movement, the right to

pursue a profession, and the right to dignity, thereby violating the

constitutional guarantee of fair and just treatment.

10. 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

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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."

11. 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.

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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 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

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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- 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 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

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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 for wholesale breach of constitutional right to speedy trial."

15 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."

16 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

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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.

17 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.

18 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. 19 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. 20 In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is set aside."

In view of the enunciation made regarding provisions for bail

and looking to the fact that the similarly situated co-accused has

been granted bail; the petitioner is behind the bar around three

years and noticing that culmination of trial in a near future is not a

seeming fate, therefore, without going into the niceties of the

matter it is felt that the right of the accused to have a speedy trial

should be protected. There is high probability that the trial may

still take a long time to conclude. In light of these facts and

circumstances and on the ground of parity, it is deemed suitable to

grant the benefit of bail to the petitioner.

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12. Accordingly, the instant bail application under Section 439