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2024 DIGILAW 460 (RAJ)

Kailash Kumar v. State of Rajasthan

2024-03-15

REKHA BORANA

body2024
ORDER Rekha Borana, J. - The present bail application under Section 439 Cr.P.C. has been filed on behalf of the petitioner for the alleged offences punishable under Sections 8/15 & 8/25 of NDPS Act in connection with FIR No.65/2021 registered at Police Station Nikumbh, District Chittorgarh. 2. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in this case. He submits that the trial is pending for last about three years and till date, only two prosecution witnesses have been examined out of total 19 witnesses. He submits that except the present one, no case under N.D.P.S. Act has been registered against him. However, two cases relating to offences under Indian Penal Code have been registered. 3. In support of his contentions, learned counsel placed reliance on the recent order dated 29.01.2024 passed by Hon'ble the Supreme Court in the case of Mamata Begum @ Bewa @ Beguni @ Mamata Bibi vs. The State of West Bengal (Special Leave to Appeal (Crl.) No.68/2024), wherein Hon'ble the Supreme Court held as under: '1. The petitioner is charged with offences punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act 1985. She is in custody for a period of two years. Though the trial has progressed, only five witnesses out of ten have been examined as of date. 2. Bearing in mind the above circumstances and conscious as the Court is of the provisions of Section 37, we are of the view that it would be appropriate to grant bail to protect the personal liberty of the petitioner who faces an interminably delayed custodial period. Consequently, we order and direct that the petitioner be released on bail, subject to such terms and conditions as may be imposed by the Special Court under the NDPS Act in connection with Case No 1370 of 2021 dated 26 November 2021 (NDPS Case No 264 of 2021). The petitioner shall, however, cooperate in all respects in the early conclusion of the trial without seeking adjournment.' 4. He also placed reliance on the order dated 13.07.2023 passed by Hon'ble the Supreme Court in the case of Rabi Prakash vs. The State of Odisha (Special Leave to Appeal (Crl.) No.4169/2023), wherein Hon'ble the Supreme Court held as under: '3. We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. He also placed reliance on the order dated 13.07.2023 passed by Hon'ble the Supreme Court in the case of Rabi Prakash vs. The State of Odisha (Special Leave to Appeal (Crl.) No.4169/2023), wherein Hon'ble the Supreme Court held as under: '3. We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. The conclusion of trial will, thus, take some more time. 4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent - State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b) (ii) of the NDPS Act.' 5. He also placed reliance on the order dated 01.08.2022 passed by Hon'ble the Supreme Court in the case of Nitish Adhikary @ Bapan vs. The State of West Bengal (Special Leave to Appeal (Crl.) No.5769/2022), wherein Hon'ble the Supreme Court held as under: 'The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS Act, registered at Police Station Bongaon, West Bengal. During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents. Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.' 6. Hon'ble the Supreme Court in the case of Union of India Vs.K.A. Najeeb, (2021) 3 SCC 713 , while dealing with the cases where fetters are placed on Court's power to grant bail and the trial has not been completed within a reasonable time, observed as under: '17. Hon'ble the Supreme Court in the case of Union of India Vs.K.A. Najeeb, (2021) 3 SCC 713 , while dealing with the cases where fetters are placed on Court's power to grant bail and the trial has not been completed within a reasonable time, 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 meltdown 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 solemetric for denial of bail or for wholesale breach of constitutional right to speedy trial.' 7. Learned counsel for the petitioner has further placed reliance on the decision dated 28.03.2023 rendered by Hon'ble the Supreme Court in Mohd Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s).915 of 2023, wherein it is observed by the Hon'ble Supreme Court that delay in trial can also be considered for releasing accused person on bail despite the restrictions imposed under Section 37 of the NDPS Act and in the light of the judgment passed by the Hon'ble Supreme Court in Mohd Muslim @ Hussain's case (supra), the petitioner is entitled to be enlarged on bail. 8. The present petitioner is in the judicial custody since 14.04.2021 i.e. for about three years and the trial of the case will take sufficiently long time. Therefore, the benefit of bail may be granted to the accused-petitioner. 9. Learned Public Prosecutor has submitted that the recovered contraband is commercial quantity, therefore, benefit of bail may not be granted to the petitioner. 10. Heard learned counsel for the petitioner and learned Public Prosecutor and perused the order-sheets of the trial proceedings as placed on record. 11. Therefore, the benefit of bail may be granted to the accused-petitioner. 9. Learned Public Prosecutor has submitted that the recovered contraband is commercial quantity, therefore, benefit of bail may not be granted to the petitioner. 10. Heard learned counsel for the petitioner and learned Public Prosecutor and perused the order-sheets of the trial proceedings as placed on record. 11. It is not disputed that the accused petitioner has so far suffered incarceration of about three years and trial is still going on. It is also not disputed that only 2 witnesses out of 19 have been examined till date. Meaning thereby, the conclusion of trial is going to take sufficient long time. 12. The Hon'ble Supreme Court in the above matters as well as in the cases of Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir [Special Leave to Appeal (Crl.) No.3961/2022], Amit Singh Moni Vs. State of Himachal Pradesh (Criminal Appeal No.668/2020), Tapan Das Vs. Union of India [Special Leave to Appeal (Criminal) No.5617/2021], Kulwant Singh Vs. State of Punjab [Special Leave to Appeal (Criminal) No.5187/2019], Ghanshyam Sharma Vs. State of Rajasthan [Special Leave to Appeal(Criminal) No.5397/2019], Nadeem Vs. State of UP [Special Leave to Appeal (Criminal)No.1524/2022] and Mukesh Vs. The State of Rajasthan [Special Leave to Appeal (Criminal)No.4089/2021] has granted bail to the accused persons, against whom the allegations are of transporting or possessing narcotic contraband above commercial quantity, on the ground of custody period and taking into consideration the fact that the trial against the said accused persons will take time in completion. The Hon'ble Supreme Court has ordered for release of the accused persons who were in custody from two years to four years. 13. Having regard to the totality of the facts and circumstances of the case, I deem it appropriate to allow this bail application solely on the ground of custody period of the accused petitioner and keeping in view the fact that the trial against him is proceeding at a snail's pace. 14. Accordingly, without expressing any opinion on the merits of the case, the bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Kailash Kumar S/o Sh. 14. Accordingly, without expressing any opinion on the merits of the case, the bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner Kailash Kumar S/o Sh. Vinod Kumar Soni shall be enlarged on bail in FIR No.65/2021 registered at Police Station Nikumbh, District Chittorgarh provided he furnishes a personal bond in the sum of Rs.2,00,000/- with two sureties of Rs.1,00,000/- each to the satisfaction of the learned trial Judge for his appearance before the Court concerned on all the dates of hearing as and when called upon to do so. 15. It is made clear that if the petitioner is found to be involved in any other case involving offence punishable under the N.D.P.S. Act within a period of six months from now, learned Public Prosecutor shall be at liberty to move an appropriate application for cancellation of the present bail.