The principle of parity in bail applications dictates that if a co-accused is granted bail under similar circumstances, the other accused should also be granted bail unless a valid distinction is made.

ORAL ORDER

[1] This successive application for regular bail is filed by the applicant- lady accused of an offence under Sections 8(c), 20(C) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’), on the ground that the co-accused who happens to be the husband of the present applicant having similar role that of possessing commercial quantity of ganja inside the house, which is taken on rent, though by the husband and wife, even if it is to be believed by the husband, he has been enlarged on bail by this Court recording that he is in judicial custody for almost three years, relying on the decisions of the Supreme Court in the case of Rabi Prakash Vs. The State of Odisha, 2023 LiveLaw (SC) 533 and Mohd. Muslim @ Hussain Vs. State (NCT of Delhi), reported in 2023 LiveLaw (SC) 260.

[2] The husband of the applicant, who is also co-accused of the present case, Rajeshbhai Rao @ Rajeshbhai Dilipbhai Rao, came to be released on bail by an order dated 21.06.2024 rendered in Criminal Misc. Application (for Successive Regular Bail- After Charge-sheet) No.18217 of 2023. As such, successive application for bail preferred by the applicant herself bearing R/ Criminal Misc. Application (for Successive Regular Bail- After Charge-sheet) No.12167 of 2023 came to be rejected with a reasoned order dated 29.09.2023. The aspect of prolonged custody as also material in respect of rented premises as also the ownership of the tempo parked outside the premises, which is taken on rent by the husband and wife, also considered and considering the fact that even individually also from the tempo when commercial quantity of ganja weighing 36.309 kgs found from it which is registered in the name of the present applicant, it came to be rejected. As such, that order has not been further challenged by the present applicant. At the same time, presumption of mental culpable state under Section 35 of ‘the Act’ as also presumption as to possession under Section 54 of ‘the Act’ is also considered by this Court while rejecting successive application for regular bail. Even decision in the case of Mohd. Muslim @ Hussain (supra) was also cited and dealt with by this Court in deciding that application.

[3] The order of bail passed by the coordinate Bench of this Court in the case of co-accused reflects the submissions on behalf of the accused that there is a delay in trial proceedings for which there is no fault on the part of the applicant therein as accused Sunilkumar Malya has jumped the temporary bail and he was supposed to surrender on 06.03.2024 but he did not surrender to the custody. Therefore, the aspect of prolonged custody of three years as under trial prisoner was pressed into service relying on the decision in the case of Rabi Prakash (supra) and Mohd. Muslim @ Hussain (supra). The coordinate Bench of this Court, after perusing the case papers, granted the bail to the accused recording that at the time of search of the premises, neither the applicant nor applicant’s wife were present at the place. However, while determining the successive application for bail, non-explanation by accused for possession of tempo parked outside the rented premises as also quantity found from inside the rented premises, which is taken on rent by the co-accused / husband of the applicant along with her, were also considered. At the same time, though co-accused jumped the bail, the competent Court vide order dated 11.06.2024 passed an order to record evidence in absence of accused No.3 under Section 299 of the Code of Criminal Procedure, 1973 separating the trail.

[4] Surprisingly, learned advocate for the co-accused applicant before coordinate Bench of this Court, on the date on which the Court determined the application, did not point out that for the absence of the co-accused who jumped the bail, trial is not going to stop or suffer. Again surprisingly, after passing of such order and an order of bail granted to the acc