Ajit Singh And Others vs State Of Rajasthan

Kuldeep Mathur, J

These second applications for bail under Section 439 Cr.P.C. have been filed by the petitioners who have been arrested in connection with FIR No.25/2020 registered at Police Station Sadar Nimbaheda, District Chittorgarh, for offences under Sections 8/18 and 25 of the NDPS Act.

As per the prosecution, on 31.01.2020, acting on a secret information provided by Vijay Kumar, S.I. A.T.S. Unit, Udaipur to Phoolchand, SHO, Sadar Nimbahera, nakabandi was conducted at Ahirpura Border and at about 09.30 am., truck having registration No.PB-11-AT-9924 was stopped. The truck driver disclosed his name to be Ajit Singh and the helper disclosed his name to be Jani. On searching the truck, contraband (opium) weighing 4 Kgs. 400 Gms. was recovered. They were arrested on the spot.

Learned counsel for the petitioners submitted that the petitioners are in custody since 31.01.2020. Learned counsel further submitted that trial against the petitioners has commenced but in last more than 3 years and 7 months, out of total 18 cited prosecution witnesses, only 9 have been examined till date. Learned counsel submitted that the delay in trial before the competent criminal court is not at all attributable to the present petitioners.

Learned counsel submitted that in view of the fact that the petitioners are in custody for last more than 3 years 7 months and the delay in trial is not attributable to them, they deserve to be enlarged on bail.

In support of his contentions, learned counsel 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.

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 petitioners 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.”

Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that petitioners are facing trial for the offences under the NDPS Act and, therefore, the present bail applications deserve to be rejected straightway.

Learned Public Prosecutor, however, was not in position to refute the fact that in last 3 years and 7 months, out of total 18 cited prosecution witnesses, only 9 witnesses have been examined till date.

Heard learned counsel for the petitioners and the learned Public Prosecutor. Perused the material available on record.

Hon’ble the Supreme Court in the case of Union of India Vs. K.A. Najeeb reported in (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 th rigours of such provisions will melt down 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 sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

A coordinate Bench of this Court in the case of Umesh Vyas vs. State of Rajasthan (S.B. Criminal Misc. II Bail Application No.14958/2022), vide order dated 17.03.2023, also observed as follows:

“The Hon’ble Supreme Court 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. Learned Public Prosecutor has opposed the bail application.

Having regard to the totality of the facts and circumstances of the case, I deem it appropriate to allow this fifth bail application solely on the ground of custody period of the accused petitioners and keeping in view the fact that the trial against him has not been completed till date.

Accordingly, without expressing any opinion on the merits of the case, this third bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioners Umesh Vyas S/o Shri Ganeshlal Ji shall be released on bail in connection with FIR No.15/2019 of Police Station Charbhuja, District Rajsamand provided he executes a personal bond in a sum of Rs.50,000/- with two sound and solvent sureties of Rs.25,000/- 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.”

Having considered the rival submissions, facts and circumstances of the case, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail applications filed by the petitioners deserve to be accepted.

Accordingly, these second bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners- (1) Ajit Singh S/o Jogendra Singh and (2) Jaani S/o Fatheh Mohammad shall be enlarged on bail in connection with FIR No.25/2020 registered at Police Station Sadar Nimbaheda, District Chittorgarh, provided each of them furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/-each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to so.

It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.

A copy of this order be placed in each file.