Allowed

Bhola Ram v. State

Rajasthan HC16 Aug 2023CRLMB/3802/2022

Case brief

AI extract

What is this about?

The High Court allowed the bail application of the petitioner, who has been in judicial custody for over three and a half years. Despite the charges under the NDPS Act, the court held that prolonged incarceration militates against Article 21 and warrants bail release.

What did the court decide?

Bail allowed on personal bond of Rs. 1,00,000/- and two sureties of Rs. 50,000/- each for appearance till completion of trial.

Bhola Ram Vs State — Narcotics (NDPS) | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 3802/2022

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Bhola Ram S/o Chandiram, Aged About 45 Years, R/o Ward No. 1, Padampur Police Station Padampur, District Sri Ganganagar. (At Present Lodged In Central Jail, Sri Ganganagar)

----Petitioner

Versus

State, Through Pp

----Respondent

For Petitioner(s)	: Mr.	Birbal Ram Bishnoi
For Respondent(s)	: Mr.	Vikram Sharma,PP

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Order

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16/08/2023

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The petitioner has been arrested in connection with FIR No.269/2019 of Police Station Padampur, District Sri Ganganagar for the offences punishable under Sections 8/22 and 29 of the NDPS Act. He has preferred this second bail application under Section 439 Cr.P.C.

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The first bail application was dismissed on 04.02.2021 as not pressed with liberty to file fresh bail application after recording of the statement of the Investigating Officer and Seizure Officer. 3. Arguing on this second bail application, learned counsel for the petitioner submits that the petitioner has falsely been implicated in this case. It is further submitted that as per the prosecution story, 13500 tablets of Trio-SR containing Tramadol Hydrocholride were recovered in the present case. It is also submitted that accused-petitioner is in judicial custody since 09.12.2019 and the prosecution is required to examine 22

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[CRLMB-3802/2022]

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(2 of 5)

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witnesses, out of which, statements of only 6 witnesses have been recorded till date. Lastly, it is submitted that the petitioner is in judicial custody for last more than three and a half years and the delay in trial is not attributable to him, he deserves to be enlarged on bail.

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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

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the Supreme Court held as under:-

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“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.

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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.”

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Per contra, learned Public Prosecutor has vehemently opposed the bail application.

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

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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

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[CRLMB-3802/2022]

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(3 of 5)

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and the trial has not been completed within a reasonable time, observed as under:

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“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 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.”

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A coordinate Bench of this Court in the case of Umesh Vyas

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vs. State of Rajasthan (S.B. Criminal Misc. II Bail Application No.14958/2022), vide order dated 17.03.2023, also observed as

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follows:

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“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

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[CRLMB-3802/2022]

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(4 of 5)

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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.

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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 petitioner and keeping in view the fact that the trial against him has not been completed till date.

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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 petitioner 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.”

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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 application filed by the petitioner deserves to be accepted.

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Consequently, the bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Bhola Ram S/o Chandiram arrested in connection with FIR No.269/2019 of Police Station Padampur, District Sri Ganganagar , 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.

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However, it is made clear that in the event the petitioner does not cooperate in the trial, the State shall be at liberty to

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(5 of 5) [CRLMB-3802/2022]

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apply for cancellation of bail before the concerned Special Court only without further reference to this Court.

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(MADAN GOPAL VYAS),J

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32-neha/-

Bhola Ram v. State

Case brief

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Bhola Ram v. State

Case brief

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