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2019 DIGILAW 2135 (RAJ)

Shrawan v. State of Rajasthan

2019-08-08

MANOJ KUMAR GARG

body2019
ORDER : MANOJ KUMAR GARG, J. 1. Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material on record. 2. The petitioner has been arrested in connection with FIR No. 01/2014 of Central Narcotics Bureau, Udaipur for the offence punishable under Sections 8/18B, 8/25, 8/29 of NDPS Act. He has preferred this second bail application under Section 439 Cr.P.C. The first bail application was dismissed by this court on 09.01.2018. 3. Counsel for the petitioner submits that the applicant is in custody since 10.03.2014 and initially the prosecution cited six witnesses in all, thereafter, the two more witnesses were added and now three prosecution witnesses are yet to be examined before the trial court. It is argued that the trial is being delayed by the prosecution and he is languishing in jail without any fault on his part. Learned counsel further argued that there is no likelihood whatsoever that the trial would be concluded in near future. He, thus, urges that the applicant, who does not have any other case under the NDPS Act against him, deserves to be enlarged on bail on the ground of delay in conclusion of the trial. In support of his contention, learned counsel has placed reliance on the Supreme Court decision in the case of Thana Singh Vs. Central Bureau of Narcotics [ (2013) 2 SCC 590 ], and decisions of this Court in S.B. Crl. Misc. II Bail Application No. 2392/2019 (Omaram @ Om Prakash Vs. state) wherein heavy quantity of 137 kg 300 gm opium was recovered and bail was granted by this Court on 06.05.2019, S.B. Crl. Misc. Bail Application No. 5606/2019 (Hanuman Ram Vs. state) wherein 137.300 kg poppy straw was recovered and bail was granted by this Court on 15.05.2019, S.B. Crl. Misc. Bail Application No. 9287/2017 (Kishan lal Vs. state) wherein 95 kg opium milk was recovered and bail was granted by this Court on 14.10.2017. 4. Learned Special Public Prosecutor has opposed the bail application and submits that total 62 kg of opium was recovered from the applicant and co-accused and now only three prosecution witnesses remain to be examined and the prosecution shall get the trial concluded at the earliest. Learned Public Prosecutor placed reliance on judgment of Apex Court in the case of Narcotics Control Bureau Vs. Learned Public Prosecutor placed reliance on judgment of Apex Court in the case of Narcotics Control Bureau Vs. Kishan Lal & Ors reported in AIR 1991 SC 558 , Union of India Vs. Niyazuddin SK & Ors reported in AIR 2017 SC 3932 . It is argued that there is a clear bar under Section 37 of the NDPS for grant of bail, therefore, in these circumstances, bail may not be granted to the petitioner. 5. I have considered the arguments advanced before me and carefully gone through the record. 6. It is not disputed that the accused applicant has so far suffered incarceration of more than 5 years and 05 months and trial is still going on. No other case for the offence under the NDPS Act has been registered against him. So far as Section 37 of the NDPS Act is concerned, the embargo put on grant of bail under Section 37 of the Act is not total. In the provision, certain exceptions exist within Section 37 itself and for those exceptions, bail can be granted. In the present case, the applicant has so far suffered incarceration of more than 5 years and 05 months, therefore, looking to the prolonged custody of the applicant it would not be appropriate to invoke the rigor envisaged under Section 37 of the NDPS Act. 7. In the present case, the applicant has so far suffered incarceration of more than 5 years and 05 months, therefore, looking to the prolonged custody of the applicant it would not be appropriate to invoke the rigor envisaged under Section 37 of the NDPS Act. 7. Hon'ble Apex Court in the case of Thana Singh (supra) held as under:- "Narcotic Drugs and Psychotropic Substances Act, 1985-Criminal Procedure- Bail in NDPS case- Delay in Trial-Appellant was languishing in jail for more than 12 years, awaiting, even the commencement of his trial for an offence under NDPS Act and he consistently denied bail, as noted, even by the High Court- Court took serious note of the fact that the maximum punishment for the offence in question is incarceration for 20 years, hence the under trial remained in detention for a period exceeding 1/2 of the maximum period of imprisonment, in the light of Section 37 of the Act, stated to be against the express pronouncement of it in Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India & Ors., (1994) 6 SCC 731 - Court not only granted the bail deserved by appellant- Thana Singh, but in a view to ensure that in future no under trial under NDPS Act is made to suffer such an anguish and plight, issued several directions." 8. It is also relevant to refer to observation in the case of Thana Singh (supra) where directions are given for speedy disposal of the NDPS cases by constitution of sufficient number of Courts and also admissibility of the chemical analysis report under Section 293 of Cr.P.C. and it was observed with reference to the provisions of the Act as per the international conventions that once there is offence attracting Section 37 of the NDPS Act, it is difficult for the accused to secure bail and therefrom the accused could languish in jail during trial that effects their personal liberty and they are entitled to be released if undergone not less than half of the period of imprisonment without trial. 9. Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioners under Section 439 Cr.P.C. 10. 9. Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioners under Section 439 Cr.P.C. 10. Accordingly, the bail application filed under Sec. 439 Cr.P.C. is allowed and it is directed that petitioner Shrawan S/o. Gumna Ram be released on bail in connection with FIR No. 01/2014 of Central Narcotics Bureau, Udaipur provided he executes a personal bond in a sum of Rs. 3,00,000/- with two sound and solvent sureties of Rs. 1,50,000/- 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.