Rajasthan High Court - Jodhpur
Sunil vs State Of Rajasthan on 22 November, 2022
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 5th Bail Application No. 9068/2022
Sunil S/o Shri Sohanlal Bishnoi, Aged About 25 Years, B/c
Bishnoi, R/o Village Jaleli Faujdar, Ps Dangiawas, Dist. Jodhpur,
Rajasthan. (At Present Lodged In Dist. Jail Rajsamand)
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Sanjay Bishnoi
For Respondent(s) : Mr. Laxman Solanki, PP
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order 22/11/2022 The present fifth bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner who is in custody in connection with F.I.R. No.87/2018, Police Station Bhim, District Rajsamand, for the offence under Sections 8/15 of NDPS Act.
Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material available on record.
The third bail application of the petitioner was dismissed by this Court vide order dated 12.02.2020 with a direction to the learned trial court to expedite the trial proceedings. The fourth bail application of the petitioner was again dismissed by this Court vide order dated 24.07.2020. Hence, the fifth bail application has been filed.
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(2 of 5) [CRLMB-9068/2022] Learned counsel for the petitioner submits that the petitioner has already undergone incarceration for a period of four years and ten months. He further submits that out of 20 prosecution witnesses, only 6 witnesses have been examined so far by the learned trial court. Learned counsel also submits that co-accused Gopi Lal has been discharged by learned trial court vide order dated 18.05.2022. It is also contended that this court while rejecting fourth bail application of the petitioner, direction was issued that since the petitioner has faced incarceration for more than two and half years, the trial court was directed to expedite the trial proceedings at its earliest convenience.
Learned counsel further submits that recently the Hon'ble Supreme Court in the case of Rahul Vs. State of Rajasthan decided on 01.11.2022 has granted bail to the petitioner on the ground that the petitioner was in custody for more than 4 years and trial was not likely to be concluded in near future. Even in that case also, the contraband recovered was more than the commercial quantity.
Learned counsel further submits that the petitioner has already suffered the incarceration for more than four and half years. The counsel for the petitioner relies upon a judgment of three Judges bench of Hon'ble Supreme Court rendered in the case of Union of India V/s K.A. Najeeb 2021 (3) SCC 713. Learned counsel further submits that casual approach of the police officials in not appearing before the trial court for their examination is hampering the trial proceedings resulting into delay in deciding the case of the petitioner for which he had to suffer the incarceration. The counsel relies upon the judgment of Hon'ble (Downloaded on 22/11/2022 at 09:08:55 PM) (3 of 5) [CRLMB-9068/2022] Supreme Court in the case of Tapan Das Vs. Union of India decided on 07.10.2021 and order of coordinate bench of this court passed in S.B.Criminal Second Bail Application No.2392/2019 Oma Ram @ Om Prakash V/s State decided on 06.05.2019 and the observations made by this court in S.B. Criminal Misc. 3rd Bail Application No.15198/2021 Manjeet Singh V/s State of Rajasthan decided on 07.12.2021. Therefore, it is prayed that the petitioner may be enlarged on bail.
Learned Public Prosecutor has filed a reply to the present bail application. He submits that on account of pandemic of Covid-19 in the country, the witnesses who are police officials could not appear before the trial court for their examination. Learned Public Prosecutor is not in position to dispute the fact that the petitioner has suffered the incarceration for more than four and half years and the orders passed by this court for expediting the trial proceedings.
I have considered the submissions made at the bar and gone through the relevant documents of the case. The petitioner is facing the trial for an offence under NDPS Act and has suffered the incarceration for more than four years ten months. It is a fact that learned trial court has summoned the witnesses from time to time for their examination before the trial court. It is worth noticing here that mostly the summoned witnesses are police officials serving in the State of Rajasthan and their non appearance before the trial court clearly shows defiance and disrespect towards orders of the trial court. The fact that the country was facing the pandemic does not absolve the departmental witnesses more particularly when they are police officials to appear before the trial (Downloaded on 22/11/2022 at 09:08:55 PM) (4 of 5) [CRLMB-9068/2022] court for their deposition especially when the courts were functioning during this period and thus, this court finds that their non -appearance before the trial court on the ground of Pandemic cannot be a reasonable excuse. In the case of Tapan Das decided on 07.10.2021, the Hon'ble Supreme Court as well as coordinate benches of this court have taken into consideration that if a person has suffered the incarceration for more than 4-5 years and his trial has not been completed, he is entitled to be enlarged on bail.
The Hon'ble Supreme Court in the case of Union of India V/s K.A. Najeeb (supra) has 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 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".
In view of the discussions made above, this Court deems it just and proper to release the petitioner on bail.
Accordingly, this fifth bail application filed under Section 439 Cr.P.C. is allowed and it is directed that the petitioner Sunil S/o Shri Sohanlal Bishnoi shall be released on bail in connection with F.I.R. No.87/2018, Police Station Bhim, District Rajsamand (Downloaded on 22/11/2022 at 09:08:55 PM) (5 of 5) [CRLMB-9068/2022] provided he executes a personal bond in a sum of Rs.1,00,000/- (Rupees: One Lac Only) with two sound and solvent sureties of Rs.50,000/- (Rupees: Fifty Thousand Only) each to the satisfaction of the 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.
(VINIT KUMAR MATHUR),J 38-AnilSingh/-
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