Updesh vs State Of Rajasthan

Vinit Kumar Mathur, J

The present third bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in connection with FIR No.54/2020, Police Station Rajiyasar, District Sri Ganganagar for the offence punishable under Sections 8/22 & 29 of 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 after rejection of the second bail application of the petitioner on 02.01.2024, out of 10 witnesses, testimony of only 9 witnesses has been recorded before the trial court so far. He further submits that no adjournment has been sought on behalf of the petitioner before the trial Court. Learned counsel submits that the petitioner has suffered incarceration for more than 4 years and the trial is not likely to be concluded in near future.

Learned counsel for the petitioner further submits that the delay in trial is not at all attributable to the petitioner and the same is not likely to be concluded in near future. Learned counsel for the petitioner has placed reliance on the cases of Rabi Prakash V/s State of Odisha (Special Leave to Appeal Crl. No.4169/2023) decided on 13.07.2023 and Mohd. Muslim V/s State (NCT of Delhi) reported in AIR 2023 SC1648. He, therefore, submits that considering the delay in completion of trial and the fact that petitioner faced incarceration for more than 4 years, the petitioner may be enlarged on bail.

Learned Public Prosecutor opposes the bail application, however, is not in a position to refute the submissions made by the counsel for the petitioner and he submits that out of 10 witnesses, only 09 witnesses have been examined so far and the petitioner has suffered incarceration for more than 4 years.

I have considered the submissions made at the Bar and gone through the relevant record of the case.

The petitioner is facing trial for an offence under the NDPS Act and has suffered incarceration for more than 4 years. It is a fact that out of 10 witnesses, only 09 witnesses have been examined before the trial Court so far. It appears that trial is not likely to be completed in near future.

Hon’ble Supreme Court in the case of Union of India V/s K. A. Najeeb, reported in 2021 (3) SCC 713 has held 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 bail7 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 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”.

Recently, the view taken in K.A. Najeeb’s case has been reiterated by the Hon’ble Supreme Court in the case of Mohd. Muslim (supra).

In view of the discussions made above, this Court deems it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C.

Accordingly, the present third bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner- Updesh S/o Sohan Lal @ Sanjay, shall be released on bail in connection with FIR No.54/2020, Police Station Rajiyasar, District Sri Ganganagar, provided he furnishes a personal bond in a sum of Rs.1,00,000/- (Rupees: One Lac Only) with two sound and solvent sureties of Rs.50,000/- (Rupees: Fifty Thousand Only) 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.