Bhanwar Lal vs State Of Rajasthan

Heard learned counsel for the petitioner as well as learned public prosecutor and also perused the material available on record.

The petitioner has been arrested in connection with FIR No.171/2012 of Police Station Rani, Distt. Pali for the offences punishable under Sections 8/15 and 25 of NDPS Act. He has preferred this third bail application under Section 439 Cr.P.C. The second bail application was dismissed by this Court on 15.03.2019.

Counsel for the petitioner submitted that the nine 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. The accused-petitioner is inside the jail since 01.09.2015. Therefore, the petitioner deserves to be enlarged on bail on the ground of delay in conclusion of 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.

Learned Public Prosecutor has opposed the bail application. I have considered the arguments advanced before me and carefully gone through the record.

It is not disputed that the accused applicant has so far suffered incarceration of more than 5 years and trial is still going on. 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, 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.

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 undertrial remained in detention for a period exceeding ½ 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." 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.

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 petitioner under Section 439 Cr.P.C.

Accordingly, the bail application filed under Sec.439 Cr.P.C. is allowed and it is directed that petitioner Bhanwar Lal S/o Shri Kanhaiya Lal Joshi shall be released on bail in connection with FIR No.171/2012 of Police Station Rani, Distt. Pali provided he executes a personal bond in a sum of Rs.2,00,000/- with two sound and solvent sureties of Rs.100,000/- 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.