Allowed

Happaram Vishnoi S/O Chhogaram v. Central Narcotics Bureau

Rajasthan HC29 Jul 2024CRLMB/4910/2024

Case brief

AI extract

What is this about?

The High Court of Rajasthan granted bail to an NCB accused detained for over five years under the NDPS Act. Balancing Article 21 right to speedy trial against Section 37 statutory restrictions, the court allowed the application due to prolonged incarceration without substantial trial progress.

What did the court decide?

Petitioner enlarged on bail to furnish personal bond of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the trial judge.

Happaram Vishnoi S/O Chhogaram Vs Central Narcotics Bureau — Narcotics (NDPS) | Rajasthan HC (2024)

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[2024:RJ-JP:31991]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous Bail Application No. 4910/2024

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Happaram Vishnoi S/o Chhogaram, Aged About 56 Years, R/o Sevalo Ki Dhani, Gram/post Palasani, Tehsil Luni, Police Station Dangiyawas, District Jodhpur (Raj.) (At Present Confined In Central Jail, Jaipur (Raj.)

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----Petitioner

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Versus

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Central Narcotics Bureau, (NCB Jodhpur), Through PP

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----Respondent

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For Petitioner(s)	: Mr. Rupender Singh Rathore Mr. Rahul Sehra
	Mr. Manav Sharma
For Respondent(s)	: Mr. T.P. Sharma, SPP (NCB) with Ms. Ishika Kothari

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HON'BLE MR. JUSTICE GANESH RAM MEENA

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Order

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29/07/2024

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The instant bail application has been filed under Section 439 Cr.P.C. on behalf of accused-petitioner. The petitioner has been arrested in connection with FIR No.VIII/(IO)03/NCB/JZU/2019 registered at Police Station N.C.B. Regional Unit, Jodhpur for offences under Sections 8, 18, 25 and 29 of the NDPS Act.

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Learned counsel for the petitioner submits that the petitioner was arrested in the present case on 07.03.2019 and has already remained in custody for more than 5 years and the maximum punishment provided under the Act for the alleged offences upto 10 years also. Learned counsel further submits that there is no fault on the part of the accused-petitioner in any manner in conclusion of the trial.

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Learned counsel further submits that the Article 21 of the Constitution of India speaks about the right of speedy trial. Learned counsel also referred the judgment passed by the Hon’ble Apex Court in the case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi) in S.B. Criminal Appeal No.943/ 2023 arising from Special Leave Petition (Crl.) No.915/2023 decided on 28.03.2023 and also the order passed by the Co-ordinate Bench of this Court in S.B. Criminal Misc. 2^nd Bail Application No.12906/2022 (Suraj Vs. State of Rajasthan) decided on 27.08.2022. Learned counsel has also prayed for release of the petitioner on bail in view of his long incarceration i.e. more than 5 years.

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Mr. T.P. Sharma, SPP appearing for NCB vehemently opposed the bail application and submits that the trial is proceeding ahead and out of total 14 witnesses 11 witnesses have been examined by the learned trial Court and the trial of the case is at its fag-end and therefore, the accused-petitioner does not deserve any interference at this stage.

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Considered the submissions made by learned counsel for the petitioner as well as learned SPP and also perused the material available on record.

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Though, there are stringent provisions under Section 37 of the NDPS Act which are to be taken into consideration while hearing the bail application of an accused for offence under the various provisions of NDPS Act and so also the cases, wherein, contraband recovered is more than commercial quantity. However,

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the rights of an accused given under Article 21 of the Constitution of India cannot be curtailed by the provisions of any act.

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The Hon’ble Apex Court in the case of Mohd. Muslim @ Hussain (supra) in para No.23 has observed as under:-

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“ 23. There is a further danger of the prisoner turning to crime, “ as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal (also see Donald Clemmer’s ‘The prisoner Community’ published in 1940). Incarceration has further deleterious effects – where the accused belongs to the weakest economic strata: immediate loss of livelihood, and several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.”

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The Co-ordinate Bench of this Court in the case of Suraj after considering the various judgments passed by the Hon’ble Apex Court as well as High Court in paras No.16, 18 and 19 has observed as under:-

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“ 16 . Another aspect that needs to be mulled over pertains to the dilemma before this Court regarding whether to consider the fundamental right of the accused to a speedy trial or to consider application of the fetter contained in Section 37 of the NDPS Act.

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The Apex Court has also upheld orders of High Courts granting bail to accused-petitioners, where alleged contraband was above commercial quantity, looking to the fact that they had suffered imprisonment for a considerable period of time and the trial was likely to take further more time to conclude. In Amit Singh Moni Vs. State of Himachal Pradesh (Criminal Appeal No. 668 of 2020), the recovered contraband material ‘ charas ’ weighed 3285 gms which was above the demarcated commercial quantity for charas , but

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Hon’ble the Supreme Court decided that the appellant was entitled to the benefit of bail vide order dated12.10.2020 as he had completed more than 2 years and 7 months of actual custody and there had been no substantial progress in the trial. In Mahmood Kurdeya Vs. Narcotics Control Bureau (Criminal Appeal No. 1570 of 2021), the Apex Court had observed that they were persuaded to pass an order in favour of the appellant as the charge sheet had been filed on 23.09.2018 in that particular matter and still no charges were framed and the trial was yet to commence, therefore, despite the fact that the embargo contained under Section 37 was attracted in the case, the accused was enlarged on bail vide order dated 07.12.2021.

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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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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 enlargethe petitioner on bail.

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19 .This Court does not wish to go into the niceties of the matter or the gravity of punishment and nature of the offence; the long period of detention spent by the accused in custody awaiting trial without any hope of conclusion of trial in the near future has shaken the conscience of this Court and thus, this Court feels persuaded to enlarge the petitioner on bail. Needless to say, the above observations are limited to the justifiable disposal of the present bail application and shall not influence the trial judge in

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any manner so as to adversely affect the rights of either of the parties.”

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Having regard to the observations of the Hon’ble Apex Court

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as well as Co-ordinate Bench of this Court in the cases referred above and so also the material fact that the petitioner is in long incarceration of more than 5 years, this Court without expressing any opinion on the merits/demerits of the case, deems just and proper to enlarge the accused-petitioner on bail.

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Accordingly, the bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner named above in connection with FIR No.VIII/(IO)03/NCB/JZU/2019 registered at Police Station N.C.B. Regional Unit, Jodhopur shall be enlarged on bail 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 and as and when called upon to do so.

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(GANESH RAM MEENA),J

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Ashish Kumar /27

Happaram Vishnoi S/O Chhogaram v. Central Narcotics Bureau

Case brief

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Happaram Vishnoi S/O Chhogaram v. Central Narcotics Bureau

Case brief

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