State of Rajasthan, Through PP vs For Petitioner(s)

Mr. Banwari Singh HON'BLE MR. JUSTICE GANESH RAM MEENA 21/02/2025 Order

1. This criminal misc. second bail application has been filed by the petitioner under Section 483 of BNSS in connection with FIR No.250/2023 registered at Police Station Adarsh Nagar (Ajmer), District Ajmer for the offences punishable under Section 8/15 of NDPS Act.

2. The first criminal misc. bail application bearing No.1045/2024 was dismissed by this Court vide order dated

13.08.2024.

3. Learned Senior Advocate Mr. G.S. Bapna assisted by Mr. Banwari Singh appearing for the accused-petitioner submits that the accused-petitioner has been implicated in this case on the basis of Section 29 of NDPS Act. Counsel further submits that no recovery of any contraband has been made from the possession of the petitioner and the only allegation against him is that he called [2025:RJ-JP:8066] (2 of 7) [CRLMB-325/2025] for the contraband alleged to have been recovered from the co- accused.

4. Learned Senior Advocate further submits that the accused- petitioner has been arrested in this case on 03.09.2023 and after completion of the investigation, charge-sheet has been filed on

18.02.2024 and after that the learned trial Court framed charges against the petitioner on 05.08.2024. It is submitted that even after incarceration of more than fifteen months, only one prosecution witness has been partly examined out of total 24 prosecution witnesses in the list.

5. Learned Senior Advocate further submits that the order- sheets of the trial Court clearly reveal that the delay in trial is because of the non-appearance of the prosecution witnesses even after the execution of bailable warrants for their presence. It has also submitted that out of total 24 prosecution witnesses, only one witness has been partly examined so far by the trial Court which infringes the right to life and personal liberty as guaranteed under Articles 20, 21 & 22 of the Constitution of India.

6. Learned Senior Advocate has also referred the order passed by the Hon’ble Apex Court in case of Manish Sisodia Vs. Directorate of Enforcement (in Criminal Appeal No. ------/2024) arising out of SLP (Criminal)) No.8781/2024 decided on 9 August 2024.

7. Learned Public Prosecutor opposed this second bail application and submits that the contraband weighing 4118.155 kg has been recovered from the possession of the co-accused. Counsel further submits that during investigation, it has been found that the co-accused was travelling with the alleged [2025:RJ-JP:8066] (3 of 7) [CRLMB-325/2025] contraband to deliver the same to the present petitioner. He also submits that in view of the provisions of Section 37 of the NDPS Act, petitioner is not entitled to be released on bail.

8. Considered the submissions made at Bar and also perused the challan papers as well as the order-sheets of the trial Court.

9. As per the facts of the case, no contraband is said to have been recovered from the possession of the accused-petitioner and he has been made an accused for the offence punishable under Sections 8/29 of the NDPS Act. The facts also disclose that the accused-petitioner was arrested in the present case on

03.09.2023 on the basis of the interrogation report of the co- accused and Police after completion of investigation has submitted charge-sheet on 18.02.2024 and, thereafter, the trial Court framed charge against the accused-petitioner on 05.08.2024.

10. The first day of recording evidence was fixed on 02.09.2024 and the prosecution witnesses No. 2, 3 & 4 were summoned by bailable warrants, on 02.09.2024. The part examination of PW-1 Manga Ram was done and was asked for examination again on

30.09.2024. On 30.09.2024, the accused-petitioner was not produced before the trial Judge and the bailable warrants of the witness No.1 returned unexecuted and the matter was adjourned for 22.10.2024. On 22.10.2024, again the same situation occurred as already occurred on 30.09.2024 and the matter was fixed for

26.11.2024 to record the evidence of witnesses. Again on

26.11.2024, the accused-petitioner was not produced before the trial Court and so also none of the prosecution witnesses appeared, therefore, the matter was adjourned for 16.12.2024. [2025:RJ-JP:8066] (4 of 7) [CRLMB-325/2025] On 16.12.2024 none of the prosecution witnesses, even after information to them through e-mail, appeared before the trial Court, therefore, they were again summoned by bailable warrants for 06.01.2025. On 06.01.2025 again, none of the prosecution witnesses put their appearance even after information and the matter was adjourned for 28.01.2025. On 28.01.2025 also none of the prosecution witnesses appeared before the trial Court for their examination. As per the order-sheet dated 03.02.2025, again no witness was examined.

11. From the aforesaid discussions about the proceedings of the trial Court, it is very much clear that there is no fault on the part of the accused-petitioner for the delay in the trial of the case, however, it is clear that the fault lies on the prosecution to delay the trial.

12. As per the list of the prosecution witnesses enclosed with the charge-sheet, there are 24 prosecution witnesses and even after the judicial custody for about fifteen months, only one witness has been partially examined out of total 24 witnesses and the speed of the trial Court looking to the total number of witnesses it seems that the trial will take still long time.

13. Hon’ble Apex Court in case of Manish Sisodia (supra) has observed as under:-

34. In this respect, we may also gainfully refer to one of the recent pronouncements by a bench of this Court to which one of us (B.R. Gavai, J.) was a member in the case of Prabir Purkayastha v. State (NCT of Delhi)4, which reads thus: “21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, [2025:RJ-JP:8066] (5 of 7) [CRLMB-325/2025] we may refer to following observations made by this Court in the case of Roy V.D.v. State of Kerala3:—“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.””

38. A Division Bench of this Court in the case of Ramkripal Meena v. Directorate of Enforcement5 was considering an application of the petitioner therein who was to receive a bribe of rupees five crore and from whom, an amount of Rs. 46,00,000/- was already recovered. In the said case, the petitioner was arrested on 26th January 2022 in connection with FIR No. 402/2021 registered against him for the offences punishable under Sections 406, 420, 120B of IPC and Section 4/6 of the Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992. He was released on bail by this Court vide order dated 18th January 2023. Thereafter, the petitioner was arrested by the ED on 21st June 2023. The Court observed thus: “7. Adverting to the prayer for grant of bail in the instant case, it is pointed out by learned counsel for ED that the complaint case is at the stage of framing of charges and 24 witnesses are proposed to be examined. The conclusion of proceedings, thus, will take some reasonable time. The petitioner has already been in custody for more than a year. Taking into consideration the period spent in custody and there being no likelihood of conclusion of trial within a short span, coupled with the fact that the petitioner is already on bail in the predicate offence, and keeping in view the peculiar facts and circumstances of this case, it seems to us that the rigours of Section 45 of the Act can be suitably relaxed to afford conditional liberty to the petitioner. Ordered accordingly.”

14. The Hon’ble Apex Court in case of Narcotic Control Bureau Vs. Lakhwinder Singh in Criminal Appeal No. 475/2025 decided on 29.01.2025 has observed as under:- “While dealing with an extraordinary situation arising out of the long incarceration of undertrial prisoners, this Court directed that in certain cases, the prisoners shall be released on bail after they complete a certain period of imprisonment. The directions issued were by way of a one-time measure. This judgment does not take away the power of the Court to grant regular bail even if the period undergone by a prisoner is less than what is provided in the said judgment. The judgment of this Court cannot be read to mean that the powers of the Court to grant bail have been curtailed. If we interpret the judgment of this Court in such a manner, the Courts will be powerless to grant bail or relief of suspension of [2025:RJ-JP:8066] (6 of 7) [CRLMB-325/2025] sentence even if a case is made out on merits. Therefore, in our view, if a case is made out for the grant of suspension of sentence and/or bail in deserving cases on merits, the Court is not powerless to grant relief of suspension of sentence and bail pending an appeal, even if an accused has not undergone half of the sentence. There cannot be a rule of thump that a convict cannot be released on bail pending an appeal against conviction unless he has undergone half of substantive sentence. 6. In the case of fixed-term sentence, if the Courts start adopting a rigid approach, in a large number of cases, till the appeal reaches the stage of the final hearing, the accused would undergo the entire sentence. This will be a violation of the rights of the accused under Article 21 of the Constitution. Moreover, it will defeat the right of appeal. 7. At this stage, the learned ASG appearing for the petitioner submitted that the power of the Court was constrained by Section 37 of the NDPS Act, which is applicable even at the stage of an appeal. He relies upon a decision of this Court in the case of Dadu vs. State of Maharashtra. There is no dispute about the fact that the Appellate Court is bound by constraints of Section 37 of the NDPS Act while considering the prayer for the grant of bail during the pendency of an appeal. However, if, in the facts of the case, an accused has undergone a substantial part of the substantive sentence and, considering the pendency of criminal appeals, his appeal is not likely to be heard before the accused undergoes the entire sentence, the Appellate Court can exercise the power of 2 (2000) 8 SCC 437 releasing the accused on bail pending the appeal. If the relief of bail is denied in such a factual situation only on the grounds of Section 37 of the NDPS Act, it will amount to the violation of the rights of the accused under Article 21 of the Constitution of India.”

15. Hence, taking into consideration the overall facts and circumstances of the case and more particularly the facts that; (i) the petitioner has been charged for offence under Section 8/29 of the NDPS Act, (ii) the accused-petitioner is in custody since

03.09.2023 that he has already suffered incarceration for more than fifteen months, (iii) Out of total 24 prosecution witnesses, only one witness has been partially examined so far, (iv) taking [2025:RJ-JP:8066] (7 of 7) [CRLMB-325/2025] into consideration the right of life and liberty in view of the fact that the accused-petitioner is in custody for last fifteen months and trial will take further long time, hence, this Court without expressing any opinion on the merits and demerits of the case, deems just and proper to enlarge the accused-petitioner on bail.

16. Accordingly, this second criminal misc. bail application is, allowed and it is directed that accused-petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the trial Court with the stipulation that he shall appear before that Court or any other Court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. DIVYA SAINI /3 (GANESH RAM MEENA),J