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2017 DIGILAW 2132 (RAJ)

Pappu Ram v. State of Rajasthan

2017-10-04

P.K.LOHRA

body2017
ORDER : P.K. Lohra, J. Accused petitioner has laid this bail application under Section 439 Cr.P.C, 1973 by invoking default clause envisaged under sub-section (2) of Section 167 Cr.P.C., 1973 in connection with FIR No. 35/2017 of Dhorimanna Police Station, District Barmer. 2. In the aforesaid FIR, petitioner is charged for offence under Section 8/21 of the NDPS Act for recovery of 370 gms smack. Recovery of the contraband from possession of the petitioner above commercial quantity entailed his arrest on 31.01.2017. It is borne out from the record that charge-sheet in the matter was not filed within the prescribed period of 180 days in terms of Section 36A(4) of the NDPS Act and that prompted the petitioner to lay bail application before Special Judge, NDPS Cases, Barmer (for short, 'learned trial Court') by taking shelter of sub-section (2) of Section 167 Cr.P.C., 1973 3. The aforesaid bail application was laid on 182nd day of the arrest of petitioner. When the bail application of petitioner was under consideration before learned trial Court, Investigating Officer submitted charge-sheet in the matter on the same day after lunch break and that persuaded the learned trial Court to decline bail plea of the petitioner. 4. It is argued by learned Senior Counsel that right of an accused envisaged under proviso to sub-section (2) of Section 167 Cr.P.C., 1973 for bail upon expiry of prescribed period without charge-sheet is indefeasible and therefore learned trial Court ought to have released the petitioner on bail. It is also argued by learned Senior Counsel that at the relevant point of time when bail application was laid by the petitioner and showed his readiness and willingness to furnish bail bonds, admittedly, charge-sheet was not available, and therefore, it is a fit case wherein petitioner ought to have been enlarged on bail by invoking aforesaid default clause. Learned Senior Counsel, in support of his arguments, has placed reliance on a judgment of Supreme Court in case of Union of India v. Nirala Yadav, (2014) 9 SCC 457 as well as an order passed by the co-ordinate Bench while deciding bail application No. 10721/2016. 5. Per contra, learned Public Prosecutor has vehemently opposed the bail application of petitioner. Learned Senior Counsel, in support of his arguments, has placed reliance on a judgment of Supreme Court in case of Union of India v. Nirala Yadav, (2014) 9 SCC 457 as well as an order passed by the co-ordinate Bench while deciding bail application No. 10721/2016. 5. Per contra, learned Public Prosecutor has vehemently opposed the bail application of petitioner. It is argued by learned Public Prosecutor that charge-sheet was filed in the matter on the same day and when the bail application came up for consideration before the learned trial Court it was available on record. He, therefore submits that the learned trial Court has not committed any error in rejecting bail application of the petitioner. 6. I have bestowed my consideration to the arguments advanced at the Bar and also made endeavour to examine the ratio of judgment of Supreme Court in Nirala Yadav (supra) and the bail order passed by co-ordinate Bench while deciding bail application No. 10721/2016. 7. I am at loss to say that learned trial Court, while declining the bail plea of petitioner, has also placed reliance on Sadhwi Pragyna Singh Thakur v. State of Maharashtra : 2011 (4) CJ (Cri.) (SC) 1312, which has laid down the principle contrary to the earlier Larger Bench decisions of the Apex Court and a later three Judges bench decision. Therefore, Supreme Court in Nirala Yadav's case (supra) held that the same has not laid down correct law and strikes a discordant note with the proposition stated in the decisions rendered by Larger Benches. It is also noteworthy that bail application of the petitioner was anterior to submission of charge-sheet in the matter and therefore, the same has furnished an indefeasible right to him for release on bail. My aforesaid view is also fortified by the order passed by co-ordinate Bench while deciding bail application No. 10721/2016. 8. In view thereof, while refraining to make any comment on merits of the case, I deem it just and appropriate to grant indulgence to the petitioner by enlarging him on bail. 9. Accordingly, the bail application under Section 439 Cr.P.C., 1973 is allowed and it is ordered that accused-petitioner, Pappu Ram S/o Dheema Ram, arrested in connection with F.I.R. No. 35/2017, Police Station Dhorimanna, District Barmer, may be released on bail; provided he furnishes a personal bond of Rs. 9. Accordingly, the bail application under Section 439 Cr.P.C., 1973 is allowed and it is ordered that accused-petitioner, Pappu Ram S/o Dheema Ram, arrested in connection with F.I.R. No. 35/2017, Police Station Dhorimanna, District Barmer, may be released on bail; provided he furnishes a personal bond of Rs. 50,000/- with two sureties of like amount to the satisfaction of learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.