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RAJASTHAN HIGH COURT
Vinit Kumar Mathur, J.
Gajesingh & Ors. - Appellants
Versus
State of Rajasthan - Respondent
S.B. Criminal Miscellaneous 2nd Bail Application No. 5022/2021 Connected With S.B. Criminal Miscellaneous 2nd Bail Application No. 11699/2021
Decided On : 14-09-2021
BAIL - NDPS ACT - The court granted bail to the petitioners under Section 439 Cr.P.C. after considering the circumstances of the case, including the lack of direct evidence linking the petitioners to the contraband and the lengthy trial process. The court emphasized the importance of individual circumstances in bail decisions, particularly when co-accused had been granted bail under similar conditions.
Fact of the Case:
The petitioners filed second bail applications under Section 439 Cr.P.C. after their first applications were rejected. They were in custody for offences under the NDPS Act related to F.I.R. No.231/2019, with no recovery made from them and no evidence linking them to the contraband.
Finding of the Court:
The court found that the petitioners were not present at the scene of the crime, and the investigation did not provide evidence of their involvement. The charge-sheet had been filed, and the trial was expected to take a long time.
Issues: Whether the petitioners should be granted bail considering the circumstances of their case and the lack of direct evidence against them.
Ratio Decidendi: The court held that bail should be granted based on the totality of circumstances, including the absence of direct evidence against the petitioners and the lengthy duration of the trial.
Result: The court allowed the second bail applications, granting bail to the petitioners on the condition of executing a personal bond and providing sureties.
ORDER
1. Both the instant bail applications stand decided by this common order as they arise out of the same FIR.
2. The present second bail applications have been filed under Section 439 Cr.P.C. on behalf of the petitioners who are in custody in connection with F.I.R. No.231/2019, Police Station Bhopalgarh, District Jodhpur for the offences under Sections 8/15, 8/29 of NDPS Act.
3. Heard learned counsel for the petitioners as well as learned Public Prosecutor and also perused the material available on record.
4. The first bail applications of the petitioners were rejected vide order dated 21.07.2020 with liberty to file fresh bail application after the statement of Investigating/Seizure Officer is recorded before the trial court.
5. Counsel for the petitioners submits that three bail applications were decided by a common order dated 21.07.2020 vide which the bail applications of the present petitioners were rejected whereas the bail application preferred by the co-accused Rajal, who was actually the person from whom the contraband was recovered, was enlarged on bail. He submits that the present petitioners were neither present on the spot nor any recovery has been effected from them.
6. Learned counsel further submits that co-accused Vivek was though enlarged on bail by the co-ordinate Bench of this Court vide order dated 01.06.2020, but the same was not brought to the notice of this Court at the time of deciding the bail application of the petitioners on 21.07.2020. He submits that the charge-sheet in the case has been filed and as per the investigation report, there are not call details of the present petitioners with the co-accused person from whom the contraband was recovered. The conclusion of trial will take sufficiently long time, therefore, it is prayed that the petitioner may be enlarged on bail.
7. Learned Public Prosecutor has opposed the bail application.
8. Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioners under Section 439 Cr.P.C.
9. Accordingly, the present second bail applications filed under Section 439 Cr.P.C. are allowed and it is directed that the petitioners (1) Gajesingh S/o Sh. Karansingh Ji & (2) Suresh S/o Sh. Sita Ram shall be released on bail in connection with F.I.R. No.231/2019, Police Station Bhopalgarh, District Jodhpur provided each of them executes a personal bond in a sum of Rs. 1,00,000/- (Rupees: One Lac Only) with two sound and solvent sureties of Rs.50,000/- (Rupees: Fifty Thousand Only) each to the satisfaction of the learned trial Court for his appearance before that Court on each and every date of hearing and whenever called upon to do so till the completion of the trial.
Bail can be granted under Section 439 Cr.P.C. when the totality of circumstances, including lack of evidence and the potential length of trial, justifies such a decision.
The court's decision was influenced by the similarity of the petitioner's case to the co-accused who had been granted bail and the absence of recovery of contraband from the petitioner's possession, ....
The quantity of the recovered contraband and the absence of similar criminal cases can be considered in granting bail under the NDPS Act.
The court ruled that the petitioners were not in conscious possession of contraband and satisfied the conditions for bail under the NDPS Act.
Bail may be granted when there is no direct evidence against the accused, especially if co-accused have been released and the trial is expected to be lengthy.
The court has the discretion to grant bail based on the totality of the facts and circumstances of the case, without expressing any opinion on the merits/demerits of the case.
Prolonged incarceration and lack of witness examination can justify bail under the NDPS Act, overriding statutory restrictions.
Prolonged incarceration and slow trial progress can justify bail under Section 439 Cr.P.C., provided it does not prejudice the trial.
The court granted bail due to lack of evidence against the petitioner and the lengthy trial duration, emphasizing the need for substantial grounds to question the prosecution's case.
Extended judicial custody without trial and lack of evidence of possession justify bail under Section 439 Cr.P.C.
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