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2018 Supreme(Raj) 43
IN THE HIGH COURT OF RAJASTHAN
SANDEEP MEHTA, J.
Dayaram Patel S/o Ummedaram Patel (aajna). and anr. - Petitioner
Versus
State of Rajasthan Through the Public Prosecutor - Respondent
S.B. Criminal Misc. IV Bail No. 10895 of 2017
Decided On : 17-01-2018
For the Petitioner: Mr. Ravindra Acharya
For the Respondent: Mr. Vikram Singh Rajpurohit
A person who has absconded after being released on bail is not entitled to bail on parity with a co-accused who has been granted bail after being in custody for over 5 years.
Headnote:
BAIL - NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 37 - BAIL - CANCELLATION - ABSENTEEISM - PARITY - SECTION 37 OF THE N.D.P.S. ACT - SUMMARY - The court rejected the petitioner's fourth bail application, finding that he was not entitled to bail on parity with a co-accused who had been granted bail after being in custody for over 5 years. The court noted that the petitioner had absconded after being released on bail and had been in custody for only 2-1/2 years, and that he had been involved in more than one case under the N.D.P.S. Act.
Fact of the Case:
The petitioner, who was arrested for transporting contraband poppy straw, was granted bail by the court. However, he jumped bail and absconded for nearly 2-1/2 years. After his re-arrest, he filed three bail applications, which were all rejected. He then filed a fourth bail application, arguing that he should be granted bail on parity with a co-accused who had been granted bail after being in custody for over 5 years.
Finding of the Court:
The court found that the petitioner was not entitled to bail on parity with the co-accused, as he had absconded after being released on bail and had been in custody for only 2-1/2 years. The court also noted that the petitioner had been involved in more than one case under the N.D.P.S. Act.
Issues: Whether the petitioner was entitled to bail on parity with a co-accused who had been granted bail after being in custody for over 5 years.
Ratio Decidendi: The court held that the petitioner was not entitled to bail on parity with the co-accused, as he had absconded after being released on bail and had been in custody for only 2-1/2 years. The court also noted that the petitioner had been involved in more than one case under the N.D.P.S. Act.
Final Decision: The court rejected the petitioner's fourth bail application.
Sandeep Mehta, J.
Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.
2. Brief sequence of events relevant and essential for disposal of this bail application is narrated hereinbelow.
3. An F.I.R. No.150/2012 came to be registered at the P.S. Mangalwad, District Chittorgarh for the offences under Sections 8/15 and 29 of the N.D.P.S. Act with an allegation that the petitioner and the co-accused Vinodgiri were found travelling in a Maruti Van bearing registration No. RJ06-UA-4792 in which, contraband poppy straw weighing 247 kgs. & 600 gms. was being transported. The petitioner was granted bail by a coordinate Bench of this Court vide order dated 23.3.2013. Whilst the said bail order was in force, the co-accused Vinodgiri too moved an application seeking bail on the ground of parity. This Court, made the following observations while deciding the Bail Application No. 2483/2013 filed on behalf of Vinodgiri vide order dated 8.5.2014:
"Learned counsel for the petitioner prays for bail on the ground that co-accused Daya Ram has been released on bail.
A perusal of the order granting bail to Daya Ram shows that he was granted bail on the ground that there was no call detail between him and the occupants of the vehicle carrying the alleged contraband. However, on 10.07.2013, learned counsel for the State pointed out that wrong information had been provided to this Court. In fact, there was call details between Daya Ram, present petitioner and Sakir Hussein who was occupant of the vehicle, from which the recovery has been effected. In view of the said information, this Court directed to send notice to Daya Ram as to why his bail should not be cancelled. It is pointed out that the service upon Daya Ram could not be affected as he has gone to Karnataka. He is absconding and is not even appearing before the trial court. Accordingly, non-bailable warrant has been issued against Daya Ram."
4. A suo moto Bail Cancellation Application No.36/2013 was registered against the petitioner herein on the directions of the Bench which granted bail to the petitioner. However, even before the said application could be decided, the petitioner jumped bail before the trial court and owing to the forfeiture of his bail bonds, the said Bail Cancellation Application was dismissed as infructuous vide order dated 5.10.2015. The petitioner who was re-arrested after nearly 2-1/2 years of having absconded, again applied for grant of bail by filing Bail Application No.2630/2016, which was rejected by this Court on 30.5.2016. The second bail application preferred by the petitioner was rejected on 5.10.2016 and the third one was dismissed on 6.7.2017. Now the petitioner has moved this fourth application for bail on the purported ground that the co-accused Vinodgiri, who too was sitting in the offending vehicle with the petitioner, has been granted bail by this Court vide order dated 8.11.2017 and hence, the petitioner too deserves to be released on bail.
5. Shri Ravindra Acharya, learned counsel representing the petitioner vehemently urged that the petitioner is entitled to indulgence of bail on parity and implored the Court to accept the instant fourth bail application. Learned Public Prosecutor on the other hand pointed out that the co-accused Vinodgiri was granted bail on the ground that he had been in custody for a period in excess of 5 years after considering the ratio of the Hon'ble Supreme Court decision in the case of Thana Singh v. CBN reported in (2013)2 SCC 590. He urged that so far as the petitioner is concerned, he has been in custody in the present case only for a period of 2-1/2 years because he was absconding for the remaining period and as such, the ratio of Thana Singh's judgment (supra) does not come to his aid and urged that the instant bail application should be rejected.
6. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have
