Allowed

Gyan Chand v. State of Rajasthan

Rajasthan HC26 Jul 2023CRLMB/4299/2023

Case brief

AI extract

What is this about?

High Court disposed of a bail application under Section 439 Cr.P.C. in a case involving possession of narcotic contraband under the NDPS Act. The court granted bail solely based on the extended period of custody and lack of trial completion, without discussing case merits. Relief includes release on personal bond and sureties.

What did the court decide?

Petitioner released on bail by executing personal bond of Rs.1,00,000/- and providing two sureties of Rs.50,000/- each, to be satisfied by trial court.

Gyan Chand Vs State of Rajasthan — Narcotics (NDPS) | Rajasthan HC (2023)

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[2023:RJ-JD:23554]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 4299/2023

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Gyan Chand S/o Bhanwar Lal, Aged About 37 Years, R/o Gaytri Nagar Devar Thana Bakani Dist. Jhalavad (At Present Lodged In Dist. Jail Nagore)

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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. Jitendra Ojha For Respondent(s) : Mr. Mool Singh Bhati, Addl.GA with Mr. Prakash Panwar, Asst.GA

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Order

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26/07/2023

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The petitioner has been arrested in connection with FIR No.224/2018 of Police Station Kotwali Nagore, District Nagore for the offence punishable under Section 8/15 of the NDPS Act. He has preferred this bail application under Section 439 Cr.P.C.

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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, 248 kgs of poppy straw was recovered in the present case. It is also submitted that accusedpetitioner is in judicial custody since 15.06.2018 and the prosecution is required to examine 8 witnesses, out of which, statements of only two witnesses have been recorded till date. Lastly, it is submitted that the petitioner is in judicial custody for last more than five years and one month 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 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 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

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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

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

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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 Gyan Chand S/o Bhanwar Lal arrested in connection with F.I.R. No.224/2018 of Police Station Kotwali Nagore, District Nagore , 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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(MADAN GOPAL VYAS),J

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66-Bharti/-

Gyan Chand v. State of Rajasthan

Case brief

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Gyan Chand v. State of Rajasthan

Case brief

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