Rajasthan High Court - Jodhpur
Kanhaiya Lal Nath vs N.C.B on 12 May, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 3173/2022
Kanhaiya Lal Nath S/o Shri Tarachand Nath, Aged About 30
Years, R/o Redi Bhurawas, Tehsil Taranagar, District Churu.
(Presently Confined In Central Jail, Jodhpur)
----Petitioner
Versus
N.c.b., Through Special Pp
----Respondent
For Petitioner(s) : Dr. Himmat Singh Shekhawat
For Respondent(s) : Mr. MR Pareek, Spl. PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 12/05/2022 Heard learned counsel for the parties on third bail appliation no.3173/2022.
The brief facts of the case are that on a secret information received on 17.04.2017 regarding trafficking of contraband likely to take place on 18.04.2027 at about 3:00 am, the NCB Team reached at Dangiyawas Bye-pass and stopped a Container. The Container was sealed with seal of Hitachi 12916, which on being broken, 87 bags of poppy straw (Doda Post) were found concealed behind AC kit boxes. Upon which, NCB team arrested the appellant and ultimately a challan was filed under Section 8, 15, 25, & 29 of NDPS Act.
The earlier bail application of petitioner was dismissed by this Court on 11.08.2020 on merits.
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(2 of 5) [CRLMB-3173/2022] In the present bail application, Dr. Shekhawat, counsel for the petitioner, has not argued the case on merits but has simply sought bail on the ground that petitioner has suffered imprisonment of about five years and a month before his conviction.
On earlier occasion this Court asked counsel for the petitioner to give specific detailed information regarding the stage of trial.
Today, counsel for the petitioner has drawn attention of this Court to the information which reflects that there are in all 11 prosecution witnesses are to be examined during trial, out of which, evidence of PW-1 Vishal Panwar, Superintendent NCB, Jodhpur; PW-2 Rameshwar Das, Intelligence Officer, Jodhpur; PW- 3 Om Prakash, Independent witness; PW-4 Sunil Sen, independent witness and PW-5 Avinash Panda, witness regarding call details have been examined and evidence of 06 prosecution witnesses is yet to be examined i.e. Banshi Lal Jat, Intelligence Officer, NCB Jodhpur (witness of seizure); Jagveer Singh, Constable, NCB, Jodhpur team, member of seizure who deposited the sample in FSL; Rajesh Tripathi, Nodal Officer, Vodafone Jaipur; Ramesh Singh Bisht, Nodal Officer, Idea Jaipur; Smt. Kaushalya Devi and Sukhveer Singh, Intelligence Officer, NCB Jodhpur (I.O. and complainant).
Counsel for the petitioner, thus, submits that until now less than half of prosecution witnesses have been examined and the completion of trial is likely to take a long time, thus, prayed to release the petitioner on bail.
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(3 of 5) [CRLMB-3173/2022] Counsel for the petitioner has relied upon the judgments of :-
(i) Hon`ble Apex Court in Tapan Das Vs. Union of India in Petition for Special Leave to Appeal (Crl.) No.5617/2021 on 07.10.2021; and
(ii) Co-ordinate Bench of this Court in Girdhar Ram Vs. Union of India, through NCB (S.B. Criminal Misc. Third Bail Application No.5749/2021, decided on 08.01.2021.
Mr. MR Pareek, learned Special PP, vehemently opposed the bail application on the ground that the offence is henious one and large quantity of contraband has been recovered and releasing of the petitioner on bail will have a negative impact on the ongoing trial.
Learned Special PP has relied upon para-1 of the judgment of Hon'ble Apex Court in Thana Singh Vs. Central Bureau of Narcotics reported in (2013) 2 SCC.
"1. This order, and its accompanying directions, are an outcome of the bail matter in Thana Singh Vs. Central Bureau of Narcotics listed before this bench, wherein an accused, who had been languishing in prison for more than twelve years, awaiting the commencement of his trial for an offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act"), was consistently denied bail, even by the High Court. Significantly, the maximum punishment for the offence the accused was incarcerated for, is twenty years; hence, the undertrial had remained in detention for a period exceeding one-half of the maximum period of imprisonment. An express pronouncement of this Court in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners Vs. Union of India & Ors.[1], which held that "where the undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of rupees one lakh, such an undertrial shall be released on bail if he has (Downloaded on 16/05/2022 at 08:36:49 PM) (4 of 5) [CRLMB-3173/2022] been in jail for not less than five years provided he furnishes bail in the sum of rupees one lakh with two sureties for like amount", finds constrained applicability in respect of cases under the NDPS Act, in light of Section 37 of the Act. Therefore, this Court in Achint Navinbhai Patel Vs. State of Gujarat & Anr.[2] observed that "it has been repeatedly stressed that NDPS cases should be tried as early as possible because in such cases normally accused are not released on bail."
Learned Special PP upon being asked as to status of trial could not refute the information provided by counsel for the appellant.
This Court after hearing counsel for the parties and perusing the record is of the firm opinion that this is a case of constrained applicability as the exception of Section 37 of NDPS Act. The judgment of Tapan Das (supra) and that of the Co-ordinate Bench of this Court are directly applicable.
This Court has ascertained before granting bail by calling for the information on previous date of hearing i.e. 05.05.2022, which has been furnished and it satisfies this Court that the trial of case is likely to take a long time. In case the preposition reflected fag end or last stage of trial, then this Court could have considered rejecting the bail application, however, taking into account the parameters of liberty of an individual as well as the precedent law cited by counsel for the petitioner, this Court finds that the same are applicable to the present case as there are in all 11 prosecution witnesses, out of whom 05 have been examined and 06 witnesses are yet to be examined and thereafter evidence of defence witnesses shall be required to be examined. It is unfortunate fact that out of the 06 prosecution witnesses, who are yet to be examined (Downloaded on 16/05/2022 at 08:36:49 PM) (5 of 5) [CRLMB-3173/2022] i.e. Banshi Lal Jat, Intelligence Officer, NCB Jodhpur (witness of seizure); Jagveer Singh, Constable, NCB, Jodhpur team and Intelligence Officer, NCB Jodhpur (I.O. and complainant) belonging to the respondent-NCB Department placed at Jodhpur and even their witness is yet to be recorded. This shows lackadaisical attitude of the respondents in carrying on with the trial. In the present scenario trial is not only being delayed but suffers from carelessness on the part of respondents to get the trial completed, thus, benefit of this has to be given to the petitioner in the given circumstance.
Accordingly, this third bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Kanhaiya Lal Nath S/o Shri Tarachand Nath shall be released on bail in connection with FIR No. VIII(IO)05/NCB/JZU/2107 registered at P.S. NCB, Jodhpur 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.
(DR.PUSHPENDRA SINGH BHATI), J.
101-Sanjay/-
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