Gauhati High Court
Mohammad Raqibuddin vs The Union Of India on 29 January, 2024
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010295322023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./7/2024
MOHAMMAD RAQIBUDDIN
S/O MOHAMMAD SIRAJUDDIN
R/O LILONG HAOREIBI MAKHA LEIKAI P.O. AND P.S. LILONG
DIST. THOUBAL, MANIPUR
VERSUS
THE UNION OF INDIA
REP. BY THE STANDING COUNSEL OF DIRECTORATE OF REVENUE
INTELLIGENCE.
Advocate for the Petitioner : MR. C K NATH
Advocate for the Respondent : SC, DRI
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 29.01.2024 Heard Mr. Y.S. Mannan, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned counsel for the respondent, i.e. Union of India, through Directorate of Revenue Intelligence.
2) By this bail application filed under section 439 Cr.P.C., the Page No.# 2/18 petitioner, Mohammad Raqibuddin, who is in custody since his arrest on 05.04.2022 in connection with DRI Case No. 01/CL/NDPS/HEROIN/DRI/GZU/2022-23 under sections 8(c)/21/22(c)/23(c)/25 of the NDPS Act, 1985, is praying for bail.
3) The said case is being tried as NDPS Case No. 304/2022 is praying for bail.
4) The learned counsel for the petitioner had submitted that the petitioner has spent 664 days in custody as on today.
5) The prayer for bail by the petitioner has been rejected by this Court by order dated 01.03.2023, passed in Bail Appln. No. 2507/2022. Thus, this is the second bail application by the petitioner before this Court.
6) The learned counsel for the petitioner has submitted that as per his information, except for the petitioner, all other co-accused are on bail. It was also submitted that there has been an inordinate delay in the trial and that out of 10 (ten) witnesses listed in the final complaint, only 2 (two) prosecution witnesses have been examined so far. Therefore, it has been submitted that there is no chance of an early conclusion of trial.
7) It has been submitted that delay in trial has infringed the fundamental right of the petitioner as enshrined under Article 21 of the Constitution of India. It has been submitted that existence of such a right has been accepted by the Supreme Court of India as well as by this Court. On the ground that there is no sign of early trial, it was submitted that the co-ordinate Bench of this Court has released under-trial prisoners considering the length of their detention. It was also submitted that even the Supreme Court of India had deprecated the long incarceration of under-trial prisoners for a long time. It was Page No.# 3/18 also submitted that except for the petitioner, the other 3 (three) co-accused have been released on bail on the ground that their right under Article 21 of the Constitution of India was violated and thus, bail was granted considering the length of custody. Hence, it was submitted that the petitioner has become entitled to bail on the same principles.
8) It was also submitted that although the narcotic drugs was not seized from the possession of the petitioner, he has spent long custody of 664 days. It has also been submitted that the petitioner has movable and immovable property and therefore, there is no chance of absconding. Moreover, it was submitted that the petitioner is ready and willing to abide by any condition that may be imposed on grant of bail.
9) In support of his submissions, the learned counsel for the petitioner has cited the following cases, viz., (i) Mary Pushpam v. Telvi Curusumary & Ors., order dated 03.01.2024, passed by the Supreme Court of India in Civil Appeal No. 9941/2016, (ii) Ejike Jonas Orji v. Narcotics Control Bureau, order dated 17.08.2023 passed by the Supreme Court of India in Crl. Appeal No. 2468/2023, (iii) S. Kasi v. State through the Inspector of Police , Samayanallur, Madurai order dated 19.06.2020, passed by the Supreme Court of India in Crl. Appeal No. 452/2020, (iv) Biswajit Lahkar v. Union of India, order dated 10.01.2024, passed by this Court in B.A. No. 4224/2023.
10) The learned counsel for the petitioner has also placed reliance on the case of a co-accused who was granted bail by co-ordinate Bench of this Court, being Mohammad Taslim Ahamad v. Union of India , order dated 20.12.2023, passed in Bail Appln. No. 1317/2023, as well as on cases referred therein, being (i) Rabi Prakash v. The State of Odisha, SLP (Crl.) No(s). 4169/2023, decided by Supreme Court of India on 13.07.2023 , (ii) Mohd.
Page No.# 4/18 Muslim @ Hussain v. State (NCT of Delhi), AIR 2023 SC 1648 , (iii) Man Mandal & Anr. V. State of West Bengal , order dated 14.09.2023, passed by Supreme Court of India in S.L.P.(Crl) 8656/2023, (iv) Tapas Mandal v. State of West Bengal, order dated 14.09.2023, passed by Supreme Court of India in S.L.P.(Crl) 8464/2023, and (v) Abdul Latif v. The State of Assam, B.A. 2169/2023, decided by this Court on 11.12.2023.
11) Per contra, the learned counsel for the respondent has opposed the prayer for bail. It was submitted that the petitioner was arrested on 05.04.2022 and after completion of investigation, final complaint was filed on 30.11.2022. Charges were explained to the petitioner on 27.10.2023. Moreover, it was submitted that till date 2 (two) prosecution witnesses have been examined. It was submitted that from the conscious possession of the petitioner and other co-accused 807.18 grams of suspected heroin was seized, which was kept concealed in 65 soap boxes. It was submitted that the seized drug was later on tested positive for heroin and percentage of heroin in the exhibits was 80.79%. It was submitted that the petitioner was the driver of the vehicle through which the drugs was being transported. It was also submitted that the said narcotic drug has a huge market value.
12) It was also submitted that during investigation the petitioner had given his address as "Mohammad Raqibuddin @ Raqibuddin, son of Mohammad Sirajuddin, resident of Lilong Haoreibi Makha Leikai, P.O. Lilong, P.S. Lilong, District Thoubal, Manipur-795130". The same address is disclosed as address of the petitioner in this bail application. In the said context, it was submitted that on verification by the respondent, the said address has been found to be fake. Accordingly, it was submitted that if the petitioner is enlarged on the strength of a fake address, there is every possibility that he would disappear/ vanish and Page No.# 5/18 would not cooperate with the trial. The learned counsel for the respondent has also submitted a written objection in this case, which is kept as a part of the record.
13) In support of his submissions, the following cases has been cited, viz., (1) Hira Singh v. Union of India, 2020 (0) Supreme(SC) 320, (2) Antaryami Patra v. State of Orissa, 1993 Crl.L.J. 1908, (3) Vijay Philip v. N.C.B., Bail Application No. 3709/2023, (4) Shri Khupliansum v. State of Meghalaya, BA No. 22/2023, (5) Order dated 18.11.2023 passed in Bail Appln. No. 2729/2023 - Vinod Bijarnia v. Union of India, (6) Order dated 18.10.2023 passed in Bail Appln. No. 2758/2023 - Huirem Rajen Meitei @ Huiram Rajen Sing @ H Rajen Meitei v. The Union of India, (7) Order dated 18.10.2023 passed in Bail Appln. No. 2748/ 2023 - Sambhu Nandi v. The Union of India, (8) Order dated 18.10.2023 passed in Bail Appln. No. 3009/2023 - Ravindra Ray & Anr. v. The Union of India, (9) Order dated 01.12.2023 passed in Bail Appln. No. 3531/2023
- Md. Motahara Sekh v. Union of India, (10) Secundrabad Club etc. v. C.I.T. etc., 2023 LiveLaw (XC) 660: 2023 INSC 736, (11) Tarun Kumar v. Assistant Director Directorate of Enforcement, 2023 (4) Crimes (SC) 442: (2023) 8 Supreme 212, and (13) Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra, (2013) 0 Supreme(SC) 252.
14) As per the final complaint, on intercepting a Swift Dzire car, which was being driven by the petitioner, heroin concealed in 65 soap boxes, weighing 807.18 gm was seized. Accordingly, along with the contraband narcotic drugs, the vehicle and other things were seized.
15) As per the final complaint, the petitioner is involved in trafficking narcotics illegally into the State through suppliers in other States. It is suspected that the heroin is of foreign origin.
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16) It may be mentioned that the Court is of the considered opinion that this is not an appropriate time to call for the trial Court records to examine the evidence on record and to appreciate as to whether or not there was sufficient evidence so far for convicting the petitioner.
17) The learned counsel for the respondent has been able to prima facie satisfy the Court that there are materials in the final complaint to suggest that the petitioner is suspected to be involved in the transportation of commercial quantity of heroin into the State.
18) In the case of Narcotics Control Bureau v. Mohit Aggarwal, AIR 2022 SC 3444, the case was lodged under section 8/22/29 of the NDPS Act, 1985. In the said case, a 3-Judge Bench of the Supreme Court of India had observed as follows:-
11. It is evident from a plain reading of the non-obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub- section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence.
Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.
12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In Collector of Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549 a decision rendered by a Three Judges Bench of this Court, it has been held thus:-
7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are: the satisfaction of the Page No.# 7/18 court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [emphasis added]
13. The expression 'reasonable ground' came up for discussion in State of Kerala & Ors. v. Rajesh and others, (2020) 12 SCC 122 and this Court has observed as below:
13. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." [emphasis added]
14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.
15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable Page No.# 8/18 grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.
* * *
17. Even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, which were subsequently retracted by them, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. We are not persuaded by the submission made by learned counsel for the respondent and the observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage.
19) It would also be relevant to quote herein below the provision of Section 436A Cr.P.C.:-
"436A. Maximum period for which an under trial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.--In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
20) In this case, charges against the petitioner is stated to have been explained to the petitioner on 27.10.2023. Therefore, in the light of Explanation to Section 436A Cr.P.C., the period upto 27.10.2023 has become liable to be Page No.# 9/18 excluded. Hence, it cannot be said that there has been an inordinate delay in commencement of the trial.
21) As per the final complaint, the petitioner was the driver of the vehicle from which heroin, which is a contraband narcotic and psychotropic substance was being smuggled into the State of Assam and commercial quantity of 807.18 gm. heroin was seized, which has a huge market value in the street estimated by the respondents at Rs.5,65,02,600/- (Rupees Five crore sixty five lakh two thousand six hundred only).
22) Therefore, the Court is unable to hold that there are reasonable grounds for believing that the petitioner is not guilty of such offence and that he is not likely to commit any offence while on bail.
23) In the case of Satender Kumar Antil v. Central Bureau of Investigation, AIR 2022 SC 3386, it has been held that:-
"Where 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 under-trial shall be released on bail if he has 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."
24) In the present case, the petitioner is charged of committing offence punishable under sections 8(c)/21/ 22(c)/23(c)/25 of the NDPS Act. Under the said provision, the punishment prescribed is not less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than Rs.1.00 lakh but which may extend to Rs.2.00 lakh. Therefore, following the ratio laid down in the case of Satender Kumar Antil (supra), as well as the provision of Section 436A Cr.P.C., the petitioner having been incarcerated for a period of 664 days, has not become entitled to be released on bail, notwithstanding that some other co-accused might have been released on bail.
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25) In the cases cited by the learned counsel for the petitioner, the judgment of the Supreme Court of India in the case of (i) Satender Kumar Antil (supra), (ii) Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549 , decided by a 3-Judge Bench and (iii) Mohit Aggarwal (supra), decided by a 3- Judge Bench had not been discussed and overruled. It appears that the said cases were not placed before the Hon'ble Bench that was deciding the case of Mohd. Muslim, Rabi Arakash (supra), Abdul Latif (supra) and Biswajit Lahkar (supra). Therefore, this Court is inclined to follow the decisions of the Supreme Court of India in the case of Satender Kumar Antil (supra), Ahmadalieva Nodira (supra) and Mohit Aggarwal (supra), referred herein before.
26) In so far as right to speedy trial is concerned. We cannot disagree that an undertrial has a right to speedy trial. But considering the Explanation to Section 436A Cr.P.C., the period upto 27.10.2023 has become liable to be excluded. Hence, it cannot be said that there has been an inordinate delay in commencement of trial.
27) It may not be out of place to refer to the observations made by the Supreme Court of India in the case of Niranjan Hemchandra Sashittal & Anr. v. State of Maharashtra, (2013) 4 SCC 642: (2013) 0 Supreme(SC) 252 , which is as follows:-
18. At this stage, we think it apposite to advert to another aspect which is sometimes highlighted. It is quite common that a contention is canvassed in certain cases that unless there is a speedy trial, the concept of fair trial is totally crucified. Recently, in Mohd. Hussain @ Julfikar Ali v. State (Government of NCT of Delhi), (2012) 9 SCC 408, a three-Judge Bench, after referring to the pronouncements in P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578: (2002) 0 Supreme(SC) 499, Zahira Habibulla H. Shekh and another v. State of Gujarat and others, (2004) 4 SCC 158, Satyajit Banerjee & Ors. v. State of West Bengal & Ors., (2005) 1 SCC 115, pointed out the subtle distinction between the two in the following manner:-
Page No.# 11/18 "40 "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end." [Emphasis added]
19. It is to be kept in mind that on one hand, the right of the accused is to have a speedy trial and on the other, the quashment of the indictment or the acquittal or refusal for sending the matter for re- trial has to be weighed, regard being had to the impact of the crime on the society and the confidence of the people in the judicial system. There cannot be a mechanical approach. From the principles laid down in many an authority of this Court, it is clear as crystal that no time limit can be stipulated for disposal of the criminal trial. The delay caused has to be weighed on the factual score, regard being had to the nature of the offence and the concept of social justice and the cry of the collective. In the case at hand, the appellant has been charge-sheeted under the Prevention of Corruption Act, 1988 for disproportionate assets. The said Act has a purpose to serve. The Parliament intended to eradicate corruption and provide deterrent punishment when criminal culpability is proven. The intendment of the legislature has an immense social relevance. In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to Page No.# 12/18 the basic tenet of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the Rule of Law. Be it noted, system of good governance is founded on collective faith in the institutions. If corrosions are allowed to continue by giving allowance to quash the proceedings in corruption cases solely because of delay without scrutinizing other relevant factors, a time may come when the unscrupulous people would foster and garner the tendency to pave the path of anarchism.
20. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality. Therefore, the relief for quashing of a trial under the 1988 Act has to be considered in the above backdrop.
21. It is perceivable that delay has occurred due to dilatory tactics adopted by the accused, laxity on the part of the prosecution and faults on the part of the system, i.e., to keep the court vacant. It is also interesting to note that though there was no order directing stay of the proceedings before the trial court, yet at the instance of the accused, adjournments were sought. After the High Court clarified the position, the accused, by exhibition of inherent proclivity, sought adjournment and filed miscellaneous applications for prolonging the trial, possibly harbouring the notion that asking for adjournment is a right of the accused and filing applications is his unexceptional legal right. When we say so, we may not be understood to have said that the accused is debarred in law to file applications, but when delay is caused on the said score, he cannot advance a plea that the delay in trial has caused colossal hardship and agony warranting quashment of the entire criminal proceeding. In the present case, as has been stated earlier, the accused, as alleged, had acquired assets worth Rs.33.44 lacs. The value of the said amount at the time of launching of the prosecution has to be kept in mind. It can be stated with absolute assurance that the tendency to abuse the official position has spread like an epidemic and has shown its propensity making the collective to believe that unless bribe is given, the work may not be done. To put it differently, giving bribe, whether in cash or in kind, may become the "mantra" of the people. We may hasten to add, some citizens do protest but the said protest may not inspire others to follow the path of sacredness of boldness and sacrosanctity of courage. Many may try to deviate. This deviation is against the social and national interest. Thus, Page No.# 13/18 we are disposed to think that the balance to continue the proceeding against the accused-appellants tilts in favour of the prosecution and, hence, we are not inclined to exercise the jurisdiction under Article 32 of the Constitution to quash the proceedings. However, the learned Special Judge is directed to dispose of the trial by the end of December, 2013 positively.
28) We take note of the observations of the Supreme Court of India in the case of Hira Singh & Anr. (supra), decided by a 3-Judge Bench, which is extracted below:-
8.5. The problem of drug addicts is international and the mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. Use of drugs by the young people in India has increased. The drugs are being used for weakening of the nation. During the British regime control was kept on the traffic of dangerous drugs by enforcing the Opium Act, 1857. The Opium Act, 1875 and the Dangerous Drugs Act, 1930. However, with the passage of time and the development in the field of illicit drug traffic and during abuse at national and international level, many deficiencies in the existing laws have come to notice.
Therefore, in order to remove such deficiencies and difficulties, there was urgent need for the enactment of a comprehensive legislation on Narcotic Drugs and Psychotropic Substances, which led to enactment of NDPS Act. As observed herein above, the Act is a special law and has a laudable purpose to serve and is intended to combat the menace otherwise bent upon destroying the public health and national health. The guilty must be in and the innocent ones must be out. The punishment part in drug trafficking is an important one but its preventive part is more important. Therefore, prevention of illicit traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 came to be introduced. The aim was to prevent illicit traffic rather than punish after the offence was committed. Therefore, the Courts will have to safeguard the life and liberty of the innocent persons. Therefore, the provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of NDPS Act; impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. Therefore, the interpretation of the relevant provisions of the statute canvassed on behalf of the accused and the intervener that quantity of neutral substance(s) is not to be taken into consideration and it is only actual content of the weight of the offending drug, which is relevant for the purpose of determining whether it would constitute "small quantity or commercial quantity", cannot be accepted.
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29) Thus, the Court is of the considered opinion that offence of dealing with, transporting of drugs and narcotic substances and drug peddling, which has the tendency to adversely affect the society and destroy the future of the youths must also be treated to be a separate class of offence.
30) In the case of P. Ramachandra Rao Vs. State of Karnataka, (2002) 4 SCC 578, a 7- Judge Bench of the Supreme Court of India had held as follows:-
29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused.
In conclusion we hold:-
(1) The dictum in A.R. Antulay's case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions.
(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The time-
limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have Page No.# 15/18 become so inordinately delayed as to be called oppressive and unwarranted. Such time limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively-by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.
31) We may also refer to the decision of the Supreme Court of India in the case of Tarun Kumar v (supra), which is extracted below:-
"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds Page No.# 16/18 have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.
19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision.
20. It is also difficult to countenance the submission of learned Counsel Mr. Luthra that the investigation qua the appellant is complete and the trial of the cases likely to take long time. According to him the appellant ought not to be incarcerated indefinitely merely because the investigation is kept open with regard to the other accused. In this regard, it may be noted that the appellant has not been able to overcome the threshold stipulations contemplated in Section 45 namely he has failed to prima facie prove that he is not guilty of the alleged offence and is not likely to commit any offence while on bail. It cannot be gainsaid that the burden of proof lies on the accused for the purpose of the condition set out in the Section 45 that he is not guilty of such offence. Of course, such discharge of burden could be on the probabilities, nonetheless in the instant case there being sufficient material on record adduced by the respondent showing the thick involvement of the appellant in the alleged offence of money laundering under Section 3 of the said Act, the Court is not inclined to grant bail to the appellant.
21. The apprehension of the learned counsel for the appellant that the trial is likely to take long time and the appellant would be incarcerated for indefinite period, is also not well founded in view of the observations made by this Court in case of Vijay Madanlal (supra). On the application of Section 436A of the Code of Criminal Procedure, 1973, it has been categorically held therein that: -
419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the Page No.# 17/18 trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a given case, the detention can be continued by the Court even longer than one-half of the period, for which, reasons are to be recorded by it in writing and also by imposing such terms and conditions so as to ensure that after release, the accused makes himself/herself available for expeditious completion of the trial."
32) Thus, in para 19 of the case of Tarun Kumar (supra), the Supreme Court of India has held that "Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision".
33) Thus, the Court is of the considered opinion that although the petitioner has spent about 664 days in custody, but as per the ratio of the case of Satender Kumar Antil (supra), the petitioner has not become entitled to bail.
34) As already discussed herein before, while granting bail to the co- accused, the cases of Satender Kumar Antil (supra), Ahmadalieva Nodira (supra) and Mohit Aggarwal (supra), referred herein before were not discussed.
35) The Court is inclined to reiterate that the specific stand of the respondents in para 20 of the objection is that the address of the petitioner, in this application as mentioned hereinbefore was a fake address. For the said reason, the petitioner is not found entitled to be released on bail.
36) In light of the discussions above, not only on the ground that the address of the petitioner is fake, but also on the ground that in light of the Page No.# 18/18 observations of the Supreme Court of India in the case of Satender Kumar Antil (supra), which is reproduced herein before, the petitioner is not found entitled to bail.
37) Thus, this application for bail is once again rejected.
38) Before parting with the record, it is made clear that nothing contained in this order shall prejudice either side during trial.
JUDGE Comparing Assistant