Allowed

Hardeep Singh @ Sonu @ Pataka v. State of Rajasthan

Rajasthan HC31 Oct 2023CRLMB/4074/2023

Case brief

AI extract

What is this about?

This High Court allowed a bail application filed by Hardeep Singh accused under the NDPS Act. The court granted bail solely based on the petitioner's incarceration period of over four years and the slow pace of the trial, relying on Supreme Court precedents regarding prolonged custody.

What did the court decide?

Petitioner enlarged on bail to furnish a personal bond of Rs. 1,00,000 with two sureties of Rs. 50,000 each.

Hardeep Singh @ Sonu @ Pataka Vs State of Rajasthan — 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. 4074/2023

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Hardeep Singh @ Sonu @ Pataka S/o Balveer Singh, Aged About 23 Years, Dholipaal, Teh. And Dist. Hanuamngarh. (Presently Lodged At Dist. Jail, Hanumangarh).

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----Petitioner

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Versus

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State Of Rajasthan, Through PP

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----Respondent

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For Petitioner(s) : Mr. Pankaj Kumar Gupta. For Respondent(s) : Mr. Mohd. Javed Gouri, PP.

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HON'BLE MR. JUSTICE KULDEEP MATHUR Order

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31/10/2023

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This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.257/2019 registered at Police Station Hanumangarh Sadar, District Hanumangarh, for the offences under Sections 8/21 and 22 of the NDPS Act.

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As per the prosecution, during routine patrolling, police team of Police Station Sadar, Hanumangarh, on 30.08.2019 at about 11.10 pm., recovered 50100 tablets of Alprafresh containing Alprazolam weighing 6.146 Kgs. from conscious possession of the present petitioner and one Mukesh Kumar. The petitioner and coaccused were arrested on the spot.

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Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in this case. Learned counsel submitted that the petitioner is in judicial custody since 30.08.2019. He further submitted that out of total 11 cited

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prosecution witnesses, only 6 prosecution witnesses have been examined before competent Criminal Court. He further submitted that the delay in trial is not at all attributable to the petitioner. He submitted that the petitioner is in judicial custody for more than 4 years and 2 months and looking to the pace at which trial is being conducted against the present petitioner, the same is not likely to be concluded in near future.

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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

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Hon’ble 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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Learned counsel further submitted that co-accused Mukesh Kumar (S.B. Cr. Misc. Bail Application No.4631/2023) has already been enlarged on bail by this Court vide order dated 12.09.2023 and the case of the present petitioner is not distinguishable from that of co-accused Mukesh Kumar.

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Per contra , learned Public Prosecutor has vehemently opposed the bail application and submitted that petitioner is facing trial for the offences under the NDPS Act and, therefore, the present bail application deserves to be rejected straightway. Learned Public Prosecutor, however, was not in position to refute the fact that in last 4 years and 2 months, out of total 11 prosecution witnesses, only 6 witnesses have been examined till date.

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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 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 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.”

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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,

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also observed as 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 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

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circumstances of the case and considering the fact that the petitioner has suffered incarceration for about 4 years and 2 months and the criminal trial has hardly reached the half-way mark, 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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Accordingly, the bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner- Hardeep Singh @ Sonu @ Pataka S/o Balveer Singh shall be enlarged on bail in connection with FIR No.257/2019 registered at Police Station Hanumangarh Sadar, District Hanumangarh, provided he 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 his appearance before the court concerned on all the dates of hearing as and when called upon to so.

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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.

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(KULDEEP MATHUR),J

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388-Tikam/-

Hardeep Singh @ Sonu @ Pataka v. State of Rajasthan

Case brief

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Hardeep Singh @ Sonu @ Pataka v. State of Rajasthan

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