Khetsingh vs State Of Rajasthan

Kuldeep Mathur, J

This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.527/2019 registered at Police Station Gulabpura, District Bhilwara for offence under Section 8/15 of the NDPS Act.

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

Learned counsel for the petitioner submits that the petitioner who is behind the bars since 30.12.2019 is entitled to be enlarged on bail on the ground of prolonged trial. Learned counsel submitted that as per the prosecution contraband (poppy husk) weighing 160 kgs was recovered from the conscious possession of the present petitioner.

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 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.”

Learned counsel has placed reliance on the judgment dated 28.03.2023 rendered by Hon’ble the Supreme Court in the cases of Mohd Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s).915 of 2023 and Rabi Prakash Vs. State of Orisa (Leave to Appeal (Criminal) No.4169/2023 wherein it is observed 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. Learned counsel for the petitioner has submitted that in the light of the judgment passed by Hon’ble the Supreme Court in Mohd Muslim @ Hussain’s case (supra), the petitioner is entitled to be enlarged on bail.

Learned counsel submitted that Hon’ble the Supreme Court has held that if the delay in trial is caused and attributable to the prosecution, that the petitioner would be entitled to be released on bail as the same would be amount to violation of right to a speedy trial.

Drawing attention of this Court towards, the order sheets of competent criminal court, learned counsel submitted that the delay in the trial is not attributable to the present petitioner and till date out of 21 cited prosecution witnesses, statements of only 14 witnesses have been recorded. It was thus prayed that the benefit of bail may be granted to the accused petitioner.

Per contra, learned Public Prosecutor has opposed the bail application and stated that looking to the seriousness of the accusation against the present petitioner, he does not deserved to be enlarged on bail. Learned Public Prosecutor however, was not in a position to refute the fact that the delay in trial has not been caused by the present petitioner, who is in custody since 30.12.2019.

Having considered the rival submissions, facts and circumstances of the case this court prima facie finds that the accused is entitled to claim bail on the basis of principles illustrated by the Hon’ble Supreme Court of India in the case of Mohd Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s).915 of 2023 and Rabi Prakash Vs. State of Orisa (Leave to Appeal (Criminal) No.4169/2023. This Court prima facie finds that the delay in trial is caused and attributable to the prosecution and the prosecution witnesses are not turning up to the witness box despite repeated summons and notices. Having gone through the order sheets of the competent criminal court does not find any material available on record indicating that the petitioner in any manner is responsible for causing delay in the proceedings/trial of the case against him, without expressing any opinion on merits/demerits of the case, this Court is inclined to enlarge the petitioner on bail.

Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Khetsingh S/o Sh. Unkarsingh Chouhan, arrested in connection with F.I.R. No.527/2019 registered at Police Station Gulabpura, District Bhilwara shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the satisfaction of learned trial court, for his appearance before that court on each & every date of hearing and whenever called upon to do so till completion of the trial.