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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 3691/2024

Harvinder Singh S/o Sher Singh, Aged About 37 Years, R/o

Salana Tehsil Amlo Police Station Amlo District Fatehgarh Sahib
(Punjab) (Presently Lodged In District Jail Chittorgarh )
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent

For Petitioner(s) : Mr. Ashok Khillery

For Respondent(s) : Mr. Abhishek Purohit, AGA

HON'BLE MR. JUSTICE FARJAND ALI

Order

19/07/2024

1. The jurisdiction of this court has been invoked by way of

filing the instant second bail application under Section 439 CrPC at

the instance of accused-petitioner. The requisite details of the

matter are tabulated herein below:

S.No. Particulars of the Case

1. FIR Number 91/2021
2. Concerned Police Station Shambhupura
3. District Chittorgarh
4. Offences alleged in the FIR Sections 8/15 & 8/15 of
the NDPS Act
5. Offences added, if any Section 8/29 of the NDPS
Act
6. Date of passing of impugned 30.01.2024
order

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2. His first bail application being SBCRLMB No.8034/2023 was

dismissed not pressed by this Court vide order dated 22.11.2023.

Hence, the instant application for bail.

3. In nutshell the facts of the case are that on 02.06.2021 SHO

Kailash Chandar Soni and his team during nakabandi an Alto Car

bearing registration No.PB08 BS0193 and a Truck No.PB03

AF3771 was coming from Nimbahera side were intercepted. Upon

suspicion, they were interrogated whereupon the driver of the Alto

Car disclosed his name to be Harvinder Singh and the person

sitting with him told his name to be Avatar Singh whereas the

driver of the truck disclosed his name to be Amrik Singh. Both

Harvinder Singh and Avatar Singh stated that they were escorting

the truck in question. Upon search of both the vehicles, a bag

containing 550 gms opium was recovered from Alto Car and 16

bags of poppy husk weighing 400.220 Kg was recovered.

Thereafter, the petitioner and co-accused were taken into custody

and a case for under Sections 8/15, 8/18 & 8/29 of the NDPS Act

got registered against them.

4. It is contended on behalf of the accused-petitioner that the

petitioner is behind the bars since year 2021 and no case for the

alleged offences is made out against him and his incarceration is

not warranted. 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.

5. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor as also the counsel for the

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complainant oppose the bail application and submits that the

present case is not fit for enlargement of accused on bail.

6. Have considered the submissions made by both the parties

and have perused the material available on record.

7. Perusal of the material revealing that the, this Court is not

supposed to comment over the quality and credibility of evidence,

since the same may influence the case of any of the parties. What

is the undisputed fact is that the petitioner is behind the bars in

this case since year 2021 and since then he is in continuous

custody. Learned counsel has drew the attention of this Court

towards the compliance of Section 53 of the NDPS Act and argued

that the investigation in this matter ought to have been conducted

by an officer of the class of SHO rank but at this stage this Court

does not like to comment over it.

8. From the course of proceeding, it can be presumed that the

petitioner is nowhere responsible for the delay occurring in the

smooth process of trial. The statement of only two witnesses has

been recorded out of the total 27 witnesses, however, number of

witnesses are required to be examined and it can be assumed that

a further long time shall be taken in culmination of trial. Pending

trial, an accused cannot be detained for an indefinite period. A

trial of an accused languishing in jail, has to be completed within a

reasonable period. In any stretch of imagination, a period of more

than three years and more cannot be considered as a reasonable

period for completion of trial.

9. Moving on to the impediments contained under Section 37

of the NDPS Act, it is considered relevant to refer to the recent

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ruling passed by Hon'ble the Supreme Court in Mohd Muslim @

Hussain V. State (NCT OF DELHI) Vs. State (NCT of Delhi)

passed by Hon’ble the Supreme Court in Special Leave Petition

(Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein while

discussing the parameters of Section 37 of the NDPS Act, it was

held that the provision cannot be construed in a manner that

would render the grant of bail impossible. The accused-appellant

in the aforementioned case was directed to be enlarged on bail

looking to the long period of incarceration. The paragraphs of

Mohd. Muslim @ Hussain (supra) relevant to the present

matter are reproduced below:

“18. The conditions which courts have to be cognizant of are that

there are reasonable grounds for believing that the accused is “not
guilty of such offence” and that he is not likely to commit any
offence while on bail. What is meant by “not guilty” when all the
evidence is not before the court? It can only be a prima facie
determination. That places the court’s discretion within a very
narrow margin. Given the mandate of the general law on bails
(Sections 436, 1 Special Leave Petition (CRL.) NO(S). 915 of 2023,
decided on 28.03.2023. 437 and 439, CrPC) which classify
offences based on their gravity, and instruct that certain serious
crimes have to be dealt with differently while considering bail
applications, the additional condition that the court should be
satisfied that the accused (who is in law presumed to be innocent)
is not guilty, has to be interpreted reasonably. Further the
classification of offences under Special Acts (NDPS Act, etc.),
which apply over and above the ordinary bail conditions required
to be assessed by courts, require that the court records its
satisfaction that the accused might not be guilty of the offence and
that upon release, they are not likely to commit any offence. These
two conditions have the effect of overshadowing other conditions.
In cases where bail is sought, the court assesses the material on
record such as the nature of the offence, likelihood of the accused

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co-operating with the investigation, not fleeing from justice: even

in serious offences like murder, kidnapping, rape, etc. On the other
hand, the court in these cases under such special Acts, have to
address itself principally on two facts: likely guilt of the accused
and the likelihood of them not committing any offence upon release.
This court has generally upheld such conditions on the ground that
liberty of such citizens have to - in cases when accused of offences
enacted under special laws – be balanced against the public
interest.
19. A plain and literal interpretation of the conditions under
Section 37 (i.e., that Court should be satisfied that the accused is
not guilty and would not commit any offence) would effectively
exclude grant of bail altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore, the only
manner in which such special conditions as enacted under Section
37 can be considered within constitutional parameters is where the
court is reasonably satisfied on a prima facie look at the material
on record (whenever the bail application is made) that the accused
is not guilty. Any other interpretation, would result in complete
denial of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act.”
(Emphasis Supplied)

10. In Rabi Prakash Vs. State of Odisha passed in Special

leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court

has again passed an order dated 13th July, 2023 dealing this

issue and has held that the provisional liberty(bail) overrides the

prescribed impediment in the statute under Section 37 of the

NDPS Act as liberty directly hits one of the most precious

fundamental rights envisaged in the Constitution, that is, the

right to life and personal liberty contained in Article 21.

11. At the stage of hearing of a bail plea pending trial, although

this Court is not supposed to make any definite opinion or

observation with regard to the discrepancy and legal defect

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appearing in the case of prosecution as the same may put a

serious dent on the State’s case yet at the same time, this Court

can not shut its eye towards the non-compliance of the

mandatory provision, more than three years of incarceration

pending trial, failure of compliance with the procedure of

sampling and seizure and the serious issue of competence of

seizure officer. In the case of Mohd. Muslim @ Hussain (Supra)

it has been propounded that at the stage of hearing a bail

application under Section 439 Cr.P.C., although it is not possible

to make a definite opinion that they are not guilty of the alleged

crime but for the limited purpose for the justifiable disposal of the

bail applications, a tentative opinion can be formed that the

material brought on record is not sufficient enough to attract the

embargo contained under Section 37 of the NDPS Act. Though

specific arguments have not been conveyed but looking to the

fact that the accused is in custody, this court feels that the

accused are not supposed to establish a case in support of his

innocence rather his detention is required to be justified at the

instance of the prosecution, therefore, this court went deep into

the facts of the case and the manner in which the entire

proceedings have been undertaken. If other surrounding factors

align in consonance with the statutory stipulations, the personal

liberty of an individual can not encroached upon by keeping him

behind the bars for an indefinite period of time pending trial. In

view of the above, it is deemed suitable to grant the benefit of

bail to the petitioner.

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12. Accordingly, the instant bail application under Section 439

Cr.P.C. is allowed and it is ordered that the accused-petitioner as

named in the cause title 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
34-Mamta/-

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