Prolonged incarceration without timely trial is a substantial factor for granting bail, regardless of the nature of charges.

ORDER :

KULDEEP MATHUR, J.

1.This third application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.375/2021 registered at Police Station Bilara, District Jodhpur, for offences under Sections 8/15 of the NDPS Act.

2. Learned counsel submitted that as per the prosecution, on 04.09.2021, acting on a secret information, a team of Police Station Bilara conducted nakabandi and recovered contraband (poppy husk/straw) weighing 788.050 Kgs. from a truck having registration No.RJ-14-GC-9189 which was being driven by the co- accused Prakash Singh and the present petitioner was helper therein. They were arrested on the spot.

3. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in this case. Learned counsel submitted that the petitioner is in judicial custody since 04.09.2021. He further submitted that till date, out of total 14 cited prosecution witnesses, only 4 prosecution witnesses have been examined before competent Criminal Court. He further submitted that the delay in trial is not at all attributable to the petitioner. He submitted that the petitioner is in judicial custody since last more than 3 years 6 months and looking to the pace at which trial is being conducted against the present petitioner, the same is not likely to be concluded in near future.

4. In support of his contention, learned counsel for the petitioner placed reliance on the cases of Rabi Prakash Vs. State of Orisa (Leave to Appeal (Criminal) No.4169/2023 and Mohd Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s).915 of 2023

5. On these grounds, he implored the Court to enlarge the petitioner on bail.

6. Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that petitioner is facing trial for the offence under the NDPS Act and, therefore, the present bail application deserves to be rejected straightway. Learned Public Prosecutor, however, was not in position to refute the fact that in last more than 3 years 6 months, out of total 14 cited prosecution witnesses, only 4 prosecution witnesses have been examined till date.

7. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the material available on record.

8. Having considered the rival submissions, facts and circumstances of the case and considering the fact that the petitioner has suffered incarceration for last more than 3 years 6 months and out of total 14 cited prosecution witnesses, only 4 prosecution witnesses have been examined till date, without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted.

9. Accordingly, the third bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner- Ash Mohammed S/o Bahid Khan shall be enlarged on bail in connection with FIR No.375/2021 registered at Police Station Bilara, District Jodhpur, provided he furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to so.

10. In case, the petitioner remains absent on any date of hearing or makes an attempt to delay the trial by seeking unnecessary adjournments, it shall be taken as a misuse of concession of bail granted to him by this Court. The prosecution, in such a situation, shall be at liberty to move an application seeking cancellation of bail granted to the petitioner today by this Court.

11. It is however, made clear that findings recorded/observations made above are for limited purposes of adjudication of bail application. The trial court shall not get prejudiced by the same.