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SUPREME COURT OF INDIA
K.M. Joseph, Hrishikesh Roy, JJ.
Jahir Hak – Appellant
Versus
The State of Rajasthan — Respondent
Criminal Appeal No. 605 of 2022 (Arising out of SLP (Crl.) No. 7003 of 2021)
Decided on : 11-04-2022
Unlawful Activities (Prevention) Act, 1967 – Section 43-D(5) – Criminal Procedure Code, 1973 – Section 439 – Bail – Denial – Appellant who is an undertrial prisoner, has already undergone a long period of incarceration – Prosecution seeks to examine as many as 109 witnesses of which only 6 witnesses have been fully examined so far – Condition in Section 43D(5) of Act of 1967 been understood to be less stringent than provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985 – Time has arrived when appellant be enlarged on bail – Bail granted. (Para 11)
Facts of the case:
By impugned order, the appellant is denied bail which is sought under Section 439 of the Code of Criminal Procedure. The appellant was arrested on 08.05.2014 in connection with FIR 113/2014 of Police Station Pratapnagar, Jodhpur for offences punishable under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967.
Findings of Court:
Observations which have been made in this order are for the purpose of deciding application for bail and the Court will, undoubtedly, decide upon the fate of the appellant in the trial on the basis of evidence and in accordance with law.
Result : Appeal allowed.
ORDER
Leave granted.
1. By the impugned order, the appellant is denied bail which is sought under Section 439 of the Code of Criminal Procedure. The appellant was arrested on 08.05.2014 in connection with FIR 113/2014 of Police Station Pratapnagar, Jodhpur for offences punishable under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967 (in short 'Act of 1967').
2. A chargesheet came to be filed against the appellant on 17.09.2014. Charges have been framed against the appellant on 29.01.2018. It is not in dispute that the appellant has been in custody for a period of almost 8 years. As far as stage of the case is concerned, examination of only 6 witnesses have been completed. The seventh witness is being examined. Ms. Pragati Neekra, learned counsel for State, does not dispute the fact that there are 109 witnesses. Without much dispute, it can be found that the appellant who is an undertrial prisoner, has already undergone a long period of incarceration.
3. This Court issued notice in this matter on 29.09.2021. Thereafter the matter came up on 26.11.2021 wherein the complaint of the appellant that out of 180 witnesses cited by the prosecution, evidence of not even a single witness was complete was noted; the counsel for the State, was asked to get instructions and also to submit before the Court as to the approximate time within which the trial can be concluded.
4. Thereafter this Court passed the following order on 03.12.2021:
"The petitioner is in custody since the last 7 years. Learned counsel for the State submits that there are a total of 109 witnesses for prosecution. It is common case that the evidence of even the first witness is not yet completely recorded. In the circumstances, we think it fit to call for a report from the Additional District and Sessions Judge, No. 3, Jodhpur City, as to within what time the trial in the case can be concluded. Accordingly, we direct that Additional District and Sessions Judge, No. 3, Jodhpur City, shall send a report as to the earliest point of time when the trial can be concluded. The report to be sent within a period of three weeks from today.
List the case on 10th January, 2022."
Pursuant to the said order, a report was filed by the Judge concerned wherein it was indicated that there is quite a probability of taking at least 2 to 3 years in disposal the instant case. The said report is dated 20.12.2021.
5. Thereafter, again, this matter was taken up on 19.01.2022. On the said date, the following order was passed:
"After hearing the learned counsel for the parties, we are of the view that interest of justice requires that the State places an affidavit before us indicating the position of the other accused with charges against them and the difference, if any, between the petitioner and the other accused. The affidavit shall also indicate about the need for any measures to protect the witnesses who will depose in the trial. The affidavit shall be file on or before 24.01.2022.
The petitioner will be free to file affidavit-in-reply to the affidavit which we have ordered the State to file.
List the matter on 25.01.2022.
6. Still further, the following order passed on 04.02.2022:
"By the impugned order, the High Court has rejected the application for bail maintained by the petitioner under the provisions of the Unlawful Activities (Prevention) Act, 1967.
We have heard learned counsel for the petitioner and also the learned counsel appearing for the respondent-State.
The petitioner has been in custody since 08.05.2014, that is almost for 8 years. Based on an order passed by this Court as to the possibility of an early disposal of the trial itself, the report indicates that even after putting every effort in the matter and keeping in view the number of witnesses, accused persons, Advocates, cross examination by them and the number of cases pending in the Court, there is probability of at least 2-3 years for the disposal in the case.
In the
Bail – Long period of incarceration as an undertrial prisoner is a valid ground to grant bail.
The court considered the prolonged custody of the petitioner and the exceptions within Section 37 of the NDPS Act to grant bail.
Bail – Fifth bail application filed solely on the ground of custody period of accused and keeping in view fact that trial against him has not been completed till date, deserves to be accepted.
Bail – Section 436-A of Cr.P.C. does not exclude offences under NDPS Act – Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21.
(1) Grant of bail – Courts are expected to appreciate legislative policy against grant of bail but rigours of such provisions will melt down where there is no likelihood of trial being completed with....
Prolonged incarceration can justify bail despite statutory restrictions under the NDPS Act, emphasizing the right to a speedy trial.
Prolonged incarceration and delay in trial proceedings can be grounds for granting bail, and non-appearance of essential witnesses before the trial court may not be a reasonable excuse.
Prolonged incarceration and delays in trial can justify bail under Section 439 Cr.P.C., emphasizing the right to a speedy trial under Article 21.
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