Allowed

Sarfaraz Mohammad S/O Late Shri Ishaq Mohammad v. the State of Rajasthan

Rajasthan HC19 Jan 2024CRLMB/14494/2023

Case brief

AI extract

What is this about?

The High Court allowed the second bail application of the accused, who had been in judicial custody for nearly seven years with negligible trial progress. Relying on the right to speedy trial and citing precedents like Suraj and State of Kerala Vs. Raneef, the Court held that indefinite detention is unjust and granted bail subject to a personal bond and sureties.

What did the court decide?

Petitioner enlarged on bail by furnishing a personal bond of Rs.50,000 with two sureties of Rs.25,000 each.

Sarfaraz Mohammad S/O Late Shri Ishaq Mohammad Vs the… — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JP:5330]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous 2^nd Bail Application No. 14494/2023

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Sarfaraz Mohammad S/o Late Shri Ishaq Mohammad, Aged About 50 Years, R/o Village Dahikhera, Police Station Iklera, District Jhalawar (Raj.) (At Present Under Judicial Custody Since 26/04/2017 And Confined At Central Jail, Jaipur)

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----Petitioner

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Versus

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The State Of Rajasthan, Through Pp

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Shivratan Godara S/o Shri Mohan Ram, The Then S.h.o. Police Station Sanganer, Jaipur (Raj.)

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----Respondents

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For Petitioner(s) : Mr. Ved Prakash Sogarwal For Respondent(s) : Mr. S. S. Mahla, PP

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HON'BLE MR. JUSTICE FARJAND ALI

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Order

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19/01/2024

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The jurisdiction of this court has been invoked by way of filing an instant application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

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S.No.	Particulars of	the Case
1.	FIR Number	325/2017
2.	Concerned Police Station	Sanganer
3.	District	Jaipur CityEast
4.	Offences alleged in the FIR	Sections 8/20, 21 of NDPS Act.
5.	Offences added, if any	--
6.	Date of passing of impugned order	13.07.2021

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The first bail application of petitioner came to be dismissed by this Court vide order dated 19.04.2022 while directing the trial Court to conclude the trial as expeditiously as possible.

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It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are several flaws and laches in the case of the prosecution. The petitioner has been behind bars for a very long period and the trial is progressing at a very slow pace. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has been made an accused based on conjectures and surmises. 4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

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Have considered the submissions made by both the parties and have perused the material available on record. It is manifesting from the record that only seven witnesses have been examined out of the long list of prosecution witnesses who are yet to be examined. The learned court below was asked to expedite the process of recording of statements as the accused was languishing in jail since a considerably long period even then, till now, there were no significant updates. Vide order dated 19.04.2022, this Court had dismissed the first bail application of the petitioner and despite the direction to expedite the trial, not even a single witness has been examined in the approximate period of one year and nine months from the date of passing of

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the order uptill today. Now, it has been six years and nine months since the accused was sent to jail and his rights and liberties are getting stifled as he is being kept incarcerated without any progress in the trial. An accused cannot be kept behind bars as an under trial for an indefinite period. A detailed order dated 27.08.2022 has been passed in this regard by this Court in S.B. Criminal Miscellaneous II Bail Application No. 12906/2022 titled Suraj Vs. State of Rajasthan wherein it has been emphasized that the right of the accused to get a speedy trial is an inalienable fundamental right under Article 21 of Constitution of India. The relevant paragraphs of the aforesaid judgment are reproduced below:-

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‘“7. ....An under trial prisoner, who is waiting for the trial to complete and reach a conclusion about his guilt for the alleged crime, is not only deprived of his right to as peedy trial but his other fundamental rights like right to liberty, freedom of movement, freedom of practising a profession or carrying on any occupation, business or trade and freedom to dignity are also hampered.

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..…

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..…

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Courts should not lose sight of the fact that preconviction detention has some punitive implications and the purpose of detention before conviction is to secure their presence at the trial and ensure their personal attendance in cases where necessity dictates their arrest and jail is the exception not the rule

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The inmates who have spent years on end to see what has been decided in their case have probably resigned to their ill fate and become used to the confines of the four walls of the prison. It reminds this Court of the reference made to Dr. Manette’s predicament in the Charles Dickens’ novel ‘A Tale of Two Cities’ by Hon’ble the Supreme Court in State

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of Kerala Vs. Raneef , reported in AIR 2011 SC 340 while dismissing the appeal filed against grant of bail to the accused who was a doctor and had already spent 66 days in custody. In the book, Dr. Manette had spent such a long time of eighteen years as an inmate that he forgot his name, profession and other details about his life that existed prior to him becoming a prisoner at La Bastille. This Court is anxious over the fact that jails debilitate the undertrial prisoners and if after the long wait, the accused is ultimately acquitted, then how would the long years spent by the under-trial in custody be restored to him/her/them. The fact that the imprisonment of a family member affects the whole family cannot be overlooked and if long incarceration pending trial is considered to be harsh on the accused, then it should also be considered to be equally harsh on the family members of the accused. The rule is that preconviction detention is not warranted by law

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Similarly, in cases where under-trial prisoners are made to wait and the trial is prolonged, the procedure of criminal proceedings itself becomes a punishment for such detainees. If the provisions laid down in the Code of Criminal Procedure are followed to the letter and not just in spirit, there will be lesser room for grievance related to speedy trial. Having noted the significance and development of the right to speedy trial, it is also important to consider the following factors while adjudicating a bail application against the backdrop of the right to a speedy trial: i) The delay should not have been a defence tactic. Who has caused the delay is also to be seen. Every delay does not necessarily prejudice the accused.

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ii) The aim is not to interpret the right to speedy trial in a manner so as to disregard the nature of offence, gravity of punishment, number of accused and witnesses, prevailing local conditions and other systemic delays.

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iii) If there is a strong reason to believe that the accused will surely flee from justice if released on bail and it will be a hard task for the investigating agency tore-apprehend him, then the benefit of bail should not be extended in his favour.

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iv) If it is shown by placing compelling material on record that the release of the accused may create a

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ruckus in the society or that he will create such a situation wherein the prosecution witnesses will not come forward to depose against him or that he may otherwise hamper the evidence of prosecution in any other manner, then utmost caution needs to be exercised in such cases before granting bail to the accused.

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The (iii) and (iv) points are to be considered only when strong and cogent evidence is placed on record or a compelling reason in support has come to light but surely not just on the basis of a simple, blanket submission made by the counsel appearing on behalf of the prosecution/complainant/victim.

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16..…While striking a balance between the statutory bar contained under Section 37 of the NDPS Act and the fundamental right of the accused to get a speedy trial, this Court is of the firm view that an accused person cannot be kept in custody for an indefinite period till the trial is concluded and the presumption of innocence, a well-established principle of criminal jurisprudence, i.e. an accused is innocent until proven guilty, operates in the favour of the petitioner.

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17....…

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18.Considering the above observations, specially the right to speedy trial being a fundamental right, the over-crowdedness and a skewed prison-prisoner ratio, the rightful object of detaining an arrestee and being cognizant of the rigour of Section 37 of the NDPS Act, and in light of the guiding pronouncements of the Apex Court on this issue, this Court deems it just and proper to enlarge the petitioner on bail.”

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This Court is cognizant of the provisions contained in Section

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37 of the NDPS Act but considering the submissions made by learned counsel for the accused-petitioner regarding long incarceration pending trial, this court is of the opinion that it is a

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fit case for grant of bail to the accused petitioner. Be that as it may, no final observations and comments can be made at this stage, as the same may influence the course of trial.

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Accordingly, the second bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- 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 do so.

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(FARJAND ALI),J

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Mamta/52

Sarfaraz Mohammad S/O Late Shri Ishaq Mohammad v. the State of Rajasthan

Case brief

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Sarfaraz Mohammad S/O Late Shri Ishaq Mohammad v. the State of Rajasthan

Case brief

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