Prolonged incarceration and delay in trial proceedings can be grounds for granting bail, and non-appearance of police officials before the trial court, citing the pandemic as a reason, cannot be a reasonable excuse.

JUDGMENT

Vinit Kumar Mathur, J. - The present fifth bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner who is in custody in connection with F.I.R. No. 87/2018, Police Station Bhim, District Rajsamand, for the offence under Sections 8/15 of NDPS Act.

2. Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material available on record.

3. The third bail application of the petitioner was dismissed by this Court vide order dated 12.02.2020 with a direction to the learned trial court to expedite the trial proceedings. The fourth bail application of the petitioner was again dismissed by this Court vide order dated 24.07.2020. Hence, the fifth bail application has been filed.

4. Learned counsel for the petitioner submits that the petitioner has already undergone incarceration for a period of four years and ten months. He further submits that out of 20 prosecution witnesses, only 6 witnesses have been examined so far by the learned trial court. Learned counsel also submits that co-accused Gopi Lal has been discharged by learned trial court vide order dated 18.05.2022. It is also contended that this court while rejecting fourth bail application of the petitioner, direction was issued that since the petitioner has faced incarceration for more than two and half years, the trial court was directed to expedite the trial proceedings at its earliest convenience.

5. Learned counsel further submits that recently the Hon'ble Supreme Court in the case of Rahul v. State of Rajasthan decided on 01.11.2022 has granted bail to the petitioner on the ground that the petitioner was in custody for more than 4 years and trial was not likely to be concluded in near future. Even in that case also, the contraband recovered was more than the commercial quantity.

6. Learned counsel further submits that the petitioner has already suffered the incarceration for more than four and half years. The counsel for the petitioner relies upon a judgment of three Judges bench of Hon'ble Supreme Court rendered in the case of Union of India v. K.A. Najeeb 2021 (3) SCC 713. Learned counsel further submits that casual approach of the police officials in not appearing before the trial court for their examination is hampering the trial proceedings resulting into delay in deciding the case of the petitioner for which he had to suffer the incarceration. The counsel relies upon the judgment of Hon'ble Supreme Court in the case of Tapan Das v. Union of India decided on 07.10.2021 and order of coordinate bench of this court passed in S.B. Criminal Second Bail Application No. 2392/2019 Oma Ram @ Om Prakash v. State decided on 06.05.2019 and the observations made by this court in S.B. Criminal Misc. 3rd Bail Application No. 15198/2021 Manjeet Singh v. State of Rajasthan decided on 07.12.2021. Therefore, it is prayed that the petitioner may be enlarged on bail.

7. Learned Public Prosecutor has filed a reply to the present bail application. He submits that on account of pandemic of Covid-19 in the country, the witnesses who are police officials could not appear before the trial court for their examination. Learned Public Prosecutor is not in position to dispute the fact that the petitioner has suffered the incarceration for more than four and half years and the orders passed by this court for expediting the trial proceedings.

8. I have considered the submissions made at the bar and gone through the relevant documents of the case. The petitioner is facing the trial for an offence under NDPS Act and has suffered the incarceration for more than four years ten months. It is a fact that learned trial court has summoned the witnesses from time to time for their examination before the trial court. It is worth noticing here that mostly the summoned witnesses are police officials serving in the State of Rajasthan and their non appearance before the trial court clearly shows defiance and disrespect towards orders of the tri