Prolonged pre-trial detention without a speedy trial violates constitutional rights, justifying bail under Section 439 Cr.P.C.

ORDER

1. This is the second bail application under Section 439 Cr.P.C. The petitioner was arrested in connection with FIR No.VIII(IO)/03/NCB/JZU/2017, Police Station NCB Jodhpur for the offence under Sections 8/18, 25 of NDPS Act.

2. The first bail application of the petitioner was dismissed by this Court vide order dt. 21.03.2018 as not pressed.

3. Learned counsel for the petitioner submits that the petitioner is innocent and he has falsely been implicated in this case. The petitioner is inside the jail since 15.03.2017 i.e. for last more than five years and 10 months and the trial is yet pending. Learned counsel while placing reliance on the decision of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. in Special Leave Petition (Crl.) No.5191 of 2021 has contended that a prolonged trial against the petitioner who is under custody since long, would be violative of Article 21 of the Constitution. It is therefore, prayed that since the petitioner is inside jail and the trial of the case will take a sufficient long time, the benefit of bail may be granted to the accused-petitioner.

4. Learned Public Prosecutor has opposed the bail application.

5. I have considered arguments advanced by learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record.

6. The Hon'ble Supreme Court in the case of Tapan Das Vs. Union of India (Special Leave to Appeal Crl. No.5617/2021,decided on 07.10.2021) has observed as under :-

'Taking into consideration the fact that the petitioner is reported to be in custody since 16.10.2017 and has, thus, suffered incarceration for around 4 years and there is no likelihood of completion of trial in the near future, which facts are not controverted by learned Additional Solicitor General appearing for the Union of India during the course of hearing, we are inclined to grant bail to him.'

7. The Hon'ble Supreme Court in another case of Union of India Vs. K.A. Najeeb in Criminal Appeal No.98 of 2021 (arising out of Special Leave Petition (Crl.) No.11616 of 2019) held as under:-

'18. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statute as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings. Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will meltdown where there is no likelihood of trial being completed within a reasonable time and the period of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.'

8. It is further noteworthy that the co-ordinate Bench of this Court in the case of 'Sunil Vs. State' (S.B. Criminal Miscellaneous 4th Bail Application No.4024/2022) granted bail to the accusedpetitioner for offence under NDPS Act on the ground that he has been su