Rajasthan High Court - Jodhpur
Jagdish vs Union Of India Through Cbn on 2 January, 2023
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 6679/2022
Jagdish S/o Ghishu Lal Dhakar, Aged About 51 Years, R/o
Badavali, P.s. Kanera, District Chittorgarh. (At Present Lodged In
District Jail, Chittorgarh)
----Petitioner
Versus
Union Of India Through Cbn, Through Cbn.
----Respondent
For Petitioner(s) : Mr. Bhagirath Bishnoi
Mr. Vijay Jani
Mr. Tanuj Jain
For Respondent(s) : Mr. N.K. Rai, Sp. PP
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order 02/01/2023 The present second 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.09/2017 Police Station CBN Nimach for the offences under Sections 8/15, 25, 29 of NDPS Act.
Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material available on record.
After the rejection of the first bail application on 23.04.2021, statement of two prosecution witnesses were recorded before the learned trial court. Learned counsel for the petitioner submits that the petitioner is facing incarceration for more than five years and statements of only two prosecution witnesses have been recorded. He further submits that after the arrest of the other co-accused (Downloaded on 02/01/2023 at 08:31:29 PM) (2 of 5) [CRLMB-6679/2022] persons in the present case, the trial has been started de novo. He submits that the prosecution witnesses who have already been examined will be re-summoned in the present case. He submits that the trial is not likely to be concluded in the near future as there are more than sixteen prosecution witnesses whose testimony will be recorded before the trial court. Learned counsel for the petitioner submits that as per the order-sheets produced before this Court, it is more than clear that they have not taken any adjournment before the trial court.
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 five 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 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 (Downloaded on 02/01/2023 at 08:31:29 PM) (3 of 5) [CRLMB-6679/2022] 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 isprayed that the petitioner may be enlarged on bail.
Learned Special Public Prosecutor has filed reply to the present bail application and submits that huge quantity of contraband has been recovered in the present case and merely because the petitioner has suffered incarceration for more than five years should not be a ground for enlargement on bail by this court. He submits that the Hon'ble Supreme Court in the case of Narcotics Control Bureau Vs. Mohit Aggarwal has categorically held that since the petitioner was involved in the recovery of huge quantity of contraband, therefore, he cannot be let out on the length of his custody period. He submits that the petitioner should not be given benefit of enlargement on bail on the ground of the period spent by him in jail during the pendency of trial.
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 five years. 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 (Downloaded on 02/01/2023 at 08:31:29 PM) (4 of 5) [CRLMB-6679/2022] 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 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 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. (Downloaded on 02/01/2023 at 08:31:29 PM)
(5 of 5) [CRLMB-6679/2022] Accordingly, the present second bail application filed under Section 439 Cr.P.C. is allowed and it is directed that the petitioner Jagdish S/o Ghishu Lal Dhakar shall be released on bail in connection with F.I.R. No.09/2017 Police Station CBN Nimach 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 36-nitin/-
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