Allowed

Pappa Ram v. Union of India through Ncb

Rajasthan HC12 May 2023CRLMB/851/2022

Case brief

AI extract

What is this about?

The Rajasthan High Court allowed a third bail application filed by a petitioner arrested under the NDPS Act. The court granted bail solely on the ground of the prolonged custody period exceeding five years, attributing trial delays to the failure of prosecution witnesses to appear despite repeated summons.

What did the court decide?

Petitioner released on bail upon furnishing a personal bond of Rs.1,00,000/- and two sureties of Rs.50,000/- each with the trial court for appearance till completion of trial.

Pappa Ram Vs Union of India through Ncb — Narcotics (NDPS) | Rajasthan HC (2023)

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[2023/RJJD/014953]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous 3^rd Bail Application No. 851/2022

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Pappa Ram S/o Sh. Chokha Ram, Aged About 40 Years, Village Bavarla Police Station Dangiawas Dist. Jodhpur. (At Present Lodged In Central Jail, Jodhpur).

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----Petitioner

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Versus

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Union Of India Through NCB

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----Respondent

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For Petitioner(s)	: Mr.	Kailash Khilery.
For Respondent(s)	: Mr.	Mahipal Bishnoi,PP.

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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Order

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12/05/2023

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This third 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.VIII(10)04/NCB/JZU/2018 registered at Police Station NCB, Jodhpur, for offences under Sections 8/18, 25 and 29 of the NDPS Act.

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Heard learned counsel for the petitioner as also the learned Public Prosecutor and perused the material available on record.

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Learned counsel for the petitioner submitted that the petitioner is accused of offences punishable under Sections 8/18, 25 and 29 of the NDPS Act. Learned counsel submitted that the petitioner is in custody for more than five years and till date, out of total 16 cited prosecution witnesses, statements of only 7 prosecution witnesses have been recorded. Learned counsel submitted that the prosecution witnesses have been summoned

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by the learned trial court repeatedly, however, without any valid reason, they have not appeared before the trial court. To substantiate aforesaid contention, attention of the Court was drawn towards various order-sheets of the trial court which indicate that the testimony of last prosecution witness (PW-7) was recorded on 15.12.2021. Learned counsel submitted that the order-sheet clearly reveals that the petitioner is not at all guilty of delaying the trial.

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Lastly, learned counsel submitted that the pace at which trial is being conducted, the same is not likely to be concluded in near future. Learned counsel submitted that gravity of punishment and nature of offence should not influence the Court in any manner so as to adversely effect the rights of either of the parties.

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Learned counsel submitted that the petitioner has been in incarceration for about five years already. Reliance was placed on the judgment rendered by Hon’ble the Supreme Court in the case of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713 wherein, 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, it was 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

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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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Reliance was also on the order dated 17.03.2023 passed by coordinate Bench of this Court in the case of Umesh Vyas vs.

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State of Rajasthan (S.B. Criminal Misc. II Bail Application

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No.14958/2022) wherein, it was 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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On these grounds, he implored the Court to enlarge the petitioner on bail.

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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 five years, out of total 16 prosecution witnesses, only 7 witnesses have been examined till date.

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In the opinion of this Court, no valid justification has been produced before the Court for non-appearance of the prosecution witnesses before competent criminal court for recording of their statements/testimonies despite repeated summons. Nonappearance of the prosecution witnesses before the trial court clearly shows that they have no interest in getting the trial concluded expeditiously.

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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 third bail application under Section 439 Cr.P.C. is allowed. It is ordered that the accused-petitioner Pappa Ram S/o Sh. Chokha Ram arrested in connection with F.I.R. No.VIII(10)04/NCB/JZU/2018 registered at Police Station NCB, Jodhpur, 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

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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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(KULDEEP MATHUR),J

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11-Tikam/-

Pappa Ram v. Union of India through Ncb

Case brief

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Pappa Ram v. Union of India through Ncb

Case brief

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