HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous VII Bail Application No. 3701/2022

Savanta S/o Shri Sukhdev, Aged About 44 Years, R/o Amarpura,

Police Station Anantpura, District Kota (Raj.)
(At Present Confined In Central Jail Ajmer)
----Accused-Petitioner
Versus
State Of Rajasthan, Through P.P.
----Respondent

For Petitioner(s) : Mr. Anil Kumar Upman

Mr. Shamsuddin Ansari
For Respondent(s) : Mr. Mangal Singh Saini, PP

HON'BLE MR. JUSTICE FARJAND ALI

Order

21/04/2022

1. This 7th bail application has been preferred on behalf of the

accused applicant- Savanta S/o Shri Sukhdev, who is languishing

in jail since 15.01.2017 in connection with FIR No. 29/2017 lodged

at Police Station Kekri, District Ajmer for offence under section

8/15 & 8/29 of NDPS Act.

2. Briefly stated the facts of the case are that as per the

charge-sheet, a vehicle was intercepted by a police team of Police

Station Kekri on 15.01.2017, which was being driven by the

petitioner Savanta Gurjar. Upon search, it was found that

contraband poppy husk weighing 120 kilograms was being carried

in a jute bag. The accused was, thus, arrested for the

contravention of Sections 8/15 & 8/29 of NDPS Act. After

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conducting usual investigation, charge-sheet no. 310/2017 dated

11.07.2017 came to submitted.

This bail plea is mainly being raised on the ground of

protraction of trial and the resultant infringement of Fundamental

Rights as has been guaranteed by the Constitution of India.

3. Shri Anil Upman with Shri Shamsuddin Ansari, learned

counsels appearing on behalf of the petitioner, submitted that a

false case has been foisted against the accused petitioner. He has

nothing to do with the alleged offences. It was averred that he is

neither the owner of the vehicle nor is he in exclusive and

conscious possession of the contraband allegedly recovered from

the accused petitioner. He was a poor driver and did not know

about the contents of the packed jute bag.

Learned counsel for the petitioner vehemently submitted that

the mandatory provisions of NDPS Act have not been complied

with. Thus, on this count, the recovery of the contraband is

vitiated. It was, with fervent submission, stated that the petitioner

is behind the bars since 15.01.2017 but the trial, for whatever

reasons, could not be completed and there's no fault of the

petitioner in delaying the trial.

As argued, all the witnesses of major importance are public

servants being police officials and thus, it is the duty of the

prosecution to get the testimony recorded as early as possible and

within a reasonable time. The period of five years, cannot, by any

stretch of imagination, be termed as a reasonable period of time.

Learned counsel for the petitioner further submitted that

protraction of trial, particularly when the accused is in jail, surely

tantamounts to a direct infringement of Fundamental Rights

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guaranteed by the Constitution of India. On this sole count, the

petitioner deserves to be enlarged on bail. They have placed

reliance on orders of the co-ordinate bench of this Court and the

Hon’ble Apex Court wherein a bail has been granted only on the

ground of delay in trial and violation of Fundamental Rights.

4. Per contra, learned Public Prosecutor has opposed the bail

application and submitted that the matter pertains to the recovery

of 120 kilograms of poppy husk which is commercial in quantity,

therefore, the bar contained in Section 37 of NDPS Act, would

operate and therefore, until the twin conditions imposed in Section

37 are not fulfilled, the accused is not entitled to bail.

5. Heard learned counsel for the parties. Perused the material

available on record more specifically the charge-sheet and the

order-sheets of the learned Trial Court.

6. It is a trite law that every accused has a right to speedy trial.

While entertaining a bail application under Section 439 of Cr.P.C.,

the nature and gravity of offence and the availability of material in

support thereof, are not the only points of consideration, but the

inordinate delay in culmination of trial and the resultant long

incarceration, cannot be left out of consideration.

As per the cardinal principle of criminal jurisprudence, a

sentence may follow after a finding of guilt is reached by a

judgment of conviction and hearing on the point of sentence, but

the sentence must precede the conviction. Thus, the pre-

conviction detention is not warranted by law, more particularly for

such a long time. It is true that looking at the nature and gravity

of offence, stringent provisions of sentence and legal fetter on the

grant of bail may be a ground for refusal to grant him bail. But at

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the same time, the prosecution cannot shirk from its responsibility

to discharge its duty to get the statement of their witnesses

recorded at the earliest. Not only the prosecution, rather it is

imperative upon the Trial Court to culminate the trial into a

legitimate conclusion expeditiously so that either the accused may

be convicted or be acquitted.

But in any event, the time taken by the prosecution must be

a reasonable time. Now, this Court attempts to answer the

question as to what is meant by 'reasonable time'. Article 21 of

the Constitution of India envisages that no person shall be

deprived of his right to life and personal liberty except as per

procedure established by law. In a plethora of judicial

pronouncements, the Hon’ble Supreme Court has observed and

guided that the procedure must, in all cases, be fair and

conducted speedily to avoid over-incarceration of under-trial

prisoners. In normal parlance, Sessions Court must commence

and culminate in one session and a single session can be of a time

period of one year.

In Ganesha Ram v. State of Rajasthan (S.B. Cr. Bail

Application No. 9586/2018), decided on 01.12.2015 by Principal

Seat at Jodhpur, this Court had issued a direction as per which the

Director General of Police, Rajasthan, Jaipur, had to appoint a

Nodal Officer in every district so that the process upon the police

witnesses could directly be given to Nodal Officer by the Court and

then it would be the duty of the Nodal Officer to produce the

witnesses before the trial court for the purpose of their

examination. However, unfortunately, this direction has been

flouted rampantly and it is apparent that prosecution fails to fulfill

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the obligation cast upon them to secure the attendance of

witnesses before the trial court and thus, because of the

lackadaisical approach of the prosecution in this case as well, the

accused petitioner continued to languish in jail for more than five

years and a half.

Now coming to the question of the ban contained in Section

37 of NDPS Act, it is mandated that the fulfillment of twin

conditions of this section takes place. The first condition is that the

prosecution must be given an opportunity to oppose the

application; and the second is that the Court must be satisfied

that there are reasonable grounds for believing that he is not

guilty of such offence. As far as the contemplation of the first

condition is concerned, ample and reasonable opportunity has

been sufficiently afforded to the prosecution to protest the bail

plea as well as to ensure the completion of trial expeditiously.

It is pertinent to note that on 31.05.2019, while dismissing

the fourth (4th) bail application, this Court had directed to

conclude the trial expeditiously in the present matter. Also, while

dismissing the sixth (6th) bail application, this Court, on

29.11.2021,ordered as under:-

“The instant 6th bail application has been filed

by the accused- petitioner who is in custody
since 15.01.2017 in connection with FIR No.
29/2017 registered at Police Station Kekri
District Ajmer for offence under section 8/18 and
8/29 of NDPS Act.

The 5th bail application has been dismissed as

withdrawn vide order dated 14.10.2020.
Learned counsel for the petitioner submits that
since around 5 years, the petitioner is facing the
rigor of trial but the trial has not been concluded
till date. He has been made accused in this case
on the basis of suspicion only. The recovery is

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nothing but farce and his further incarceration

would not be required for any purpose.

Per contra learned Public Prosecutor submits

that the accused was found in the vehicle from
which huge quantity of around 120 kg of poppy
husk was recovered and he was found in
conscious possession of contraband. Thus, he is
entitled to be released on bail.

Heard and perused that the challan papers and

gone through the progress of trial. It transpires
that the trial is at the fag end as out of 21
witnesses, only one witnesses is remaining to be
examined. At this stage, where the charges are
to be substantiated on the basis of the evidence
adduced by the prosecution during trial and
meticulous appreciation of evidence is not
required to be made, I do not deem it
appropriate to pursue it to comment on the
merits of the case. However, looking to the facts
and circumstances of the case, I am not inclined
to grant bail to the accused petitioner.

Accordingly, the bail of the petitioner is

dismissed.

Before parting, I deem it appropriate to direct

the learned trial Court to culminate the trial
expeditiously since the accused is languishing in
jail for around five years which certainly
infringes his fundamental right of speedy trial. It
is expected that the learned trial court shall
decide the case preferably within three months
from the date of receipt of this order.”

It is evinced from the orders dated 31.05.2019 and

29.11.2019 that ample opportunity has been afforded to

prosecution as well as the learned trial court to conclude the trial,

but to no avail. While dismissing the sixth (6 th) bail application,

this Court, on 14.03.2022, passed the following order while

adjourning this case:-

“A letter has been sent by the Additional

Sessions Judge No. 1, Kekri District Ajmer
contending therein that sincere efforts are being
made to summon and examine the witnesses in
special case No. 32/2017. It is submitted that
owing to filing of application under section 311

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of Cr.P.C. which came to be allowed,

examination of two witnesses is pending.

In view of the factual aspect, further two

months’ time is extended for completion of the
trial.

Learned trial Judge shall do all the needful so

that the trial may be completed at the earliest.
List after one week.”

Thus, it is abundantly clear that more than enough

opportunities have been afforded to complete the trial and to

argue on the bail plea and as such, the first condition of Section

37 of NDPS Act is complied with. As far as the second condition is

concerned, when the trial is still going on, it would be pre-mature

to observe that the accused is guilty or non-guilty since for the

same task, the petitioner is undergoing trial and the learned trial

court has to adjudge the same on the basis of the evidence

adduced by the parties in the trial. For that to happen, the learned

trial judge has to appreciate the material in light of settled

principles of law and then pronounce whether or not the

prosecution succeeded in proving its case beyond every shadow of

reasonable doubt as well as whether or not the mandatory

provisions of NDPS Act have been complied with.

Any observation in this regard may influence the trial judge

or put an adverse effect on either of the parties. At this stage, and

while hearing this bail application, we are only concerned with

infringement of Fundamental Rights, which are inarguably

available, by all means, even to the accused who is facing

incarceration since last more than 5 years. At one hand, there is

an embargo contained under Section 37 of NDPS Act and on the

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other hand, there is a guaranteed right provided to the accused by

the Constitution.

In cases like the present, this Court being the Constitutional

Court, is under an obligation to strike a balance between the

Fundamental Rights available to the accused and the Statutory

Rights available to the prosecution.

As stated above, sufficient opportunity has been afforded to

the prosecution to complete the trial and to protest the bail. Now,

more than five years have elapsed and the trial is yet to be

completed. Even this Court has been ordering the conclusion of

trial in an expeditious manner since last two years and a half. The

list of witnesses annexed with the charge-sheet shows that as

many as 21 witnesses have been projected as prosecution

witnesses. Out of 21, 19 are police officials; the two independent

witnesses, Rameshwar and Suresh had been examined on

08.06.2018. Thus, it is clear that the trial is simply poising like a

pendulum for want of attendance of police officials and they are

not turning up timely for deposition of their statements.

Neither the prosecution is serious enough nor the trial judge

is making any sincere endeavour to compel the attendance of

prosecution witnesses, resulting into the indefinite incarceration of

an accused whose guilt is yet to be proved and who has been

languishing in judicial custody for more than five years. The life

and liberty of an individual, be it a person who has been accused

of a crime, cannot be left in the hands of an unscrupulous

prosecutor.

In Vinod Bhandari v. State of M.P., reported in (2015) 11

SCC 502, a Division Bench of the Hon'ble Apex Court, considered

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the rights of an accused praying for bail pending trial and

observed as under:-

12. It is well settled that at pre-conviction

stage, there is presumption of innocence. The
object of keeping a person in custody is to
ensure his availability to face the trial and to
receive the sentence that may be passed. The
detention is not supposed to be punitive or
preventive. Seriousness of the allegation or the
availability of material in support thereof are
not the only considerations for declining bail.
Delay in commencement and conclusion of trial
is a factor to be taken into account and the
accused cannot be kept in custody for
indefinite period if trial is not likely to be
concluded within reasonable time. Reference
may be made to decisions of this Court in
Kalyan Chandra Sarkar v. Rajesh Ranjan:
(2005) 2 SCC 42, State of U.P. v. Amarmani
Tripathi: (2005) 8 SCC 21, State of Kerala v.
Raneef: (2011) 1 SCC 784 and Sanjay Chandra
v. CBI: (2012) 1 SCC 40.
13……
14……
15……
16…..
17…..
18. It is certainly a matter of serious concern
that the Appellant has been in custody for
about one year and there is no prospect of
immediate trial. When a person is kept in
custody to facilitate a fair trial and in the
interest of the society, it is duty of the
prosecution and the Court to take all possible
steps to expedite the trial. Speedy trial is a
right of the accused and is also in the interest
of justice………………... "

Notably, the accused is not responsible for the delay

occasioned in the completion of trial. There are several cases

where the Hon’ble Supreme Court has granted bail even at the

stage of defence evidence. In Special Leave to Appeal (Crl.) No(s).

5397/2019 titled Ghanshyam Sharma v. State of Rajasthan,

the Hon'ble Supreme Court had granted bail at the stage where

trial was almost at the verge of completion and petitioners were

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given opportunities to put forth their defence by order dated

10.01.2020.

7. After keen consideration of the facts and circumstances of

this case, the statutory impediment contained in Section 37 of

NDPS Act and being conscious of the fundamental droit to speedy

trial guaranteed to the accused-petitioner, this Court deems it just

and appropriate to allow the instant bail application.

Accordingly, the 7th bail application under Section 439 Cr.P.C.

is allowed and it is ordered that the accused-petitioner named

above 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.

(FARJAND ALI),J

SAHIL SONI /199-200

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