Prolonged incarceration without trial and lack of admissible evidence can justify the granting of bail under Section 439 Cr.P.C.

ORDER

1. The instant bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. 283/2018 registered at Police Station Nasirabad Sadar District Ajmer for the offence(s) under Sections 8/15 of NDPS Act.

2. It is transpired from the record that the first application of the petitioner came to be dismissed on 05.10.2018, thereafter second application was rejected by the Co-ordinate Bench of this Court on 07.01.2019. The bail plea of Lalit was dismissed by the Co-ordinate Bench of this Court on 02.09.2020 and the second bail application of accused Lalit is pending yet.

3. Learned counsel for the petitioner submits that he has nothing to do with the alleged offence and falsely been implicated in this matter. He contends that there is no evidence suggesting that petitioner was present in the vehicle at the place where the alleged recovery was made; he asserts that in fact he was faraway from the place of alleged recovery. He is innocent and in custody since 05.09.2018. He further submits that in view of the recent judgments of the Hon'ble Supreme Court regarding release of accused where the trial has been protracted for a long, the indefinite incarceration of the petitioner would not be justifiable as the same is violative of his fundamental right guaranteed by Article 21 of Constitution of India. He drew attention of this Court towards some order-sheets of the learned trial Court, the last order-sheet dated 10.02.2021 reflects that Presiding Officer was not present and the case was posted for want of prosecution evidence on 07.04.2021. It is prayed that the petitioner may be directed to be enlarged on bail.

4. Per contra, learned Public Prosecutor vehemently opposed the bail and contended that the petitioner has not placed on record the entire order-sheets so that the progress of the trial could be examined properly. He contends that the Police party on 31.08.2018 intercepted a white Bolero Camper bearing registration No. RJ-09-GB0532 on a highway. Three persons were there in the vehicle. The vehicle was being driven by the accused Dinesh Prajapat s/o Shri Shiv Lal Prajapat, aged 21 years r/o Godawari Basti, near Government School Chhoti Sadri District Pratapgarh. The other persons sitting by the side of the driver was Khemraj s/o Balram Kumawat r/o Basedi Kundal Police Station Chhoti Sadri District Pratapgarh and the third was Lalit Singh Mehta s/o Sh. Nandlal r/o Pratap Chowk, Chhoti Sadri, District Pratapgarh. Upon checking of the vehicle a total 308.300 kg poppy husk came to be recovered from that vehicle, the accused were arrested at the spot. During the course of the investigation, the said three accused who were arrested from the spot disclosed in their interrogation note that the present petitioner namely Dinesh Prajapat s/o Shri Shankar Lal Prajapat was also involved in the commission of crime, accordingly with the add of Section 29 of NDPS Act; the petitioner was arrested and charge-sheeted and the trial is going on but no witness has been examined yet.

5. Learned Public Prosecutor though opposed the bail application vehemently submitted that two bail applications of the petitioner have been rejected by the Co-ordinate Bench of this Court, therefore the petitioner is not entitle to be enlarged on bail. The learned State Counsel has not been able to show any piece of evidence which is legally admissible and can relate the accused with the crime.

6. Heard and minutely perused the record of the case as made available by the counsel for the petitioner. It appears that the petitioner was not the same person who was found in that vehicle from which huge quantity of contraband came to be recovered. It is a case of the prosecution that upon interrogation from the three who were apprehended at the spot; it was revealed that the present applicant handed over the vehicle to them. As a matter of fact nothing has been recovered from the petitioner. He has been booked in this matter si