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2025 DIGILAW 712 (RAJ)

Mohan @ Shambhu v. State of Rajasthan

2025-03-11

FARJAND ALI

body2025
Order : 1. The jurisdiction of this court has been invoked by way of filing the instant bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below: S.No. Particulars of the Case 1. FIR Number 265/2020 2. Concerned Police Station Chanderaia 3. District Chittorgarh 4. Offences alleged in the FIR Section 8/15 NDPS Act 5. Offences added, if any - 6. Date of passing of impugned order 24.02.2025 2. The previous application being S.B. Criminal Misc. Bail Application No.14858/2024 came to be dismissed as not pressed by this Court vide order dated 17.12.2024. Hence, the instant bail application. 3. The brief facts of the case are that on 01.10.2020, SHO PS Chanderia along with his team during nakabandi tried to intercept a Duster car bearing registration number RJ-27-CD-6680 but upon seeing police party, driver along with one other person escape their good by lying the vehicle in an abandoned condition. Some of the officials, claimed that the said vehicle was being driven by Mohan Lal @ Shambhoo Lal. Upon search, 10 sack bags (Weighing 234 Kg.) of poppy husk were recovered. Consequently, an FIR No.265/2020 was registered at Police Station Chanderia under Sections 8/15 of the NDPS Act. The petitioner was arrested on 10.05.2021 and charge sheeted. The petitioner had previously moved a bail application, which was dismissed as not pressed by this Court vide order dated 17.12.2024. 4. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. He further submits that the accused was taken into custody on 10.05.2021 and since then he is behind the bars. He further submits that nothing has been recovered or discovered from him. Now, after his arrest, around three years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail. 5. He further submits that nothing has been recovered or discovered from him. Now, after his arrest, around three years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail. 5. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail. 6. I have heard and considered the submissions made by both the parties and perused the challan papers and the other material available on record. 7. Though the fifth bail application of the petitioner was rejected by this Court vide order dated 17.12.2024 passed in SBCRLMB No.14858/2024 but the petitioner has filed instant bail application because out of total 22 witnesses, 9 witnesses have been examined in the trial till date. Besides the delay in trial, the petitioner has an arguable case in respect of non-compliance of the mandatory provisions and flouting of the Standing Orders 1/1989 issued by the Central Govt. with regard to seizure, sampling of the contraband and in my view, if the same would be adjudicated in favour of the petitioner, he may get acquittal. Of course, there is a fetter under Section 37 of the NDPS Act regarding grant of bail to an accused having illegal possession of commercial quantity of contraband but a fundamental right of speedy trial to him cannot be permitted to be flouted. When there appears conflict between the statutory provision and the fundamental right then this Court is of the view that a protection of fundamental right should be given preference over the statutory bar in granting bail. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial. 8. While keeping an accused detained, the opportunity to the prosecutor to lead evidence can only be given for a reasonable period. The wider connotation of the phrase ‘reasonable period’ be understood to be one year because the case is classified as a sessions case which would mean that the like cases should commence and conclude within a session, that is, one year. The wider connotation of the phrase ‘reasonable period’ be understood to be one year because the case is classified as a sessions case which would mean that the like cases should commence and conclude within a session, that is, one year. Even if an elastic interpretation of the expression ‘reasonable period’ is taken on the pretext of certain unavoidable circumstances, then it can only be doubled and even in that situation, trial has to be completed within two years while keeping an accused in custody. Suffice it would to say that for the purpose of determination as to whether the accused is guilty or not, only a reasonable period can be awarded to the prosecutor if the accused is behind the bars. The cases which are classified as session case are purposefully directed to be heard by senior officer of District Judge Cadre looking to his experience and rank/grade/post. In criminal jurisprudence prevalent in India, there is a presumption of innocence working in favour of the accused until he is proven guilty in the trial. The trial is conducted for the purpose of affording an opportunity to the prosecutor to prove the charges and only for the purpose of proving guilt or adducing evidence on record, an unreasonable period of time cannot be granted as the same infringes the fundamental rights of an accused which are otherwise guaranteed by the Constitution of India. While entertaining a bail plea the Court of law is required to take into account the above-mentioned aspect of the matter as well beside the gravity of offence and quantum of sentence. 9. It is well-nigh settled law that at pre-conviction stage, bail is a rule and denial of the same should be an exception. The purpose for keeping an accused behind the bars during trial would be to secure his presence on the day of conviction and to ensure that he may receive the sentence as would be awarded to him otherwise, as stated above, it is the rule of crimnal jurisprudence that he shall be presumed innocent until his guilt is proved. In the instant case, it has been around three years have elapsed since the accused was sent to jail and his rights and liberties are getting stifled as he is being kept incarcerated without any progress in the trial. An accused cannot be kept behind bars as an undertrial for an indefinite period. In the instant case, it has been around three years have elapsed since the accused was sent to jail and his rights and liberties are getting stifled as he is being kept incarcerated without any progress in the trial. An accused cannot be kept behind bars as an undertrial for an indefinite period. A detailed order dated 27.08.2022 has been passed in this regard by this Court in S.B. Criminal Miscellaneous II Bail Application No. 12906/2022 titled Suraj Vs. State of Rajasthan wherein it has been emphasized that the right of the accused to get a speedy trial is an inalienable fundamental right under Article 21 of Constitution of India. 10. In Rabi Prakash Vs. State of Odisha passed in Special leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court has again passed an order dated 13th July, 2023 dealing this issue and has held that the provisional liberty(bail) overrides the prescribed impediment in the statute under Section 37 of the NDPS Act as liberty directly hits one of the most precious fundamental rights envisaged in the Constitution, that is, the right to life and personal liberty contained in Article 21. 11. Considering the overall facts and circumstances of the case and the fact that petitioner is behind the bars for almost three years thus, looking to the fact that there is high probability that the trial may take long time to conclude, it is deemed suitable to grant the benefit of bail to the petitioner. 12. Accordingly, the instant bail application under Section 483 BNSS is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- 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.