Delay in trial can justify bail under the NDPS Act, especially when co-accused are granted bail under similar circumstances.

Order

08/01/2024

1. Heard learned counsel for the parties and perused the material available on record.

2. The petitioner has been arrested in connection with FIR No.122/2020 of Police Station Padukala, District Nagaur for the offence punishable under Section 8/15 of the NDPS Act. He has preferred this fourth bail application under Section 439 Cr.P.C.

3. Brief facts as noticed by this Court are that on 03.07.2020 at about 11:00 PM at Annapurna Hotel, N.H.89 Lampolai, a white coloured Tata truck bearing registration No.M.H.18-BG-2289 was standing. The alleged story of the prosecution is that from the truck, one Ghanshyam sitting on the driver’s side and one Suresh sitting on the Khalasi side were arrested whereas the third person namely Bhura Ram ran away from the site in question as the contraband was seized.

4. Learned counsel for the petitioner submits that with absolutely identical allegations Ghanshyam and Suresh were arrested and are facing trials with the same charges and co- accused Suresh has already been granted bail by this Court passed in S.B. Criminal Misc. Second Bail Application No.8812/2023 vide order dated 08.11.2023. The order dated 08.11.2023 reads as follows:-

“Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material on record.

The petitioner has been arrested in FIR No.122/2020 of Police Station Padukallan, District Nagaur for the offence punishable under Section 8/15 of NDPS Act. He has preferred this second bail application under Section 439 Cr.P.C.

Learned counsel for the petitioner has submitted that first bail application of the petitioner was rejected by this Court on 11.02.2021. It is also submitted that as per the prosecution story, the petitioner was apprehended while transporting narcotic contraband poppy straw weighing 288.230 kgs. illegally on 04.07.2020 and till date he is in custody. It is also submitted that as per the charge-sheet, the prosecution is required to examine total 15 witnesses, however, out of which only 1 has been examined till 11.05.2023. It is also submitted that the trial of the case will take time and the delay in trial cannot be attributed to the petitioner.

Learned counsel for the petitioner has placed reliance on the decision dated 28.03.2023 rendered by the Hon’ble Supreme Court in Mohd Muslim @ Hussain Vs. State (NCT of Delhi) [Special Leave Petition (Crl.) No(s). 915 of 2023], wherein it is observed by the Hon’ble Supreme Court that delay in trial can also be considered for releasing accused person on bail despite the restrictions imposed under Section 37 of the NDPS Act. It is submitted that in the light of the judgment passed by the Hon’ble Supreme Court in Mohd Muslim @ Hussain’s case (supra), the petitioner is entitled to be enlarged on bail.

Learned Public Prosecutor has opposed the bail application. Having heard the learned counsel for the parties and after going through the material available and in view of the judgment passed by the Hon’ble Supreme Court in Mohd Muslim @ Hussain’s case (supra), without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioner under Section 439 Cr.P.C.

Accordingly, this second bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner - Suresh S/o Shri Hanutram shall be released on bail in connection with FIR No.122/2020 of Police Station Padukallan, District Nagaur provided he executes a personal bond in a sum of Rs.100,000/- with two sound and solvent sureties of Rs.50,000/- each to the satisfaction of 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.”

5. Learned Public Prosecutor though opposes the bail application, but fairly submits that the role of Suresh and Ghanshyam is absolutely identical.

6. This Court relying upon the order of the coordinate Bench of this Court whereby the co-accu