Rajasthan High Court – Jaipur
Dheeraj Khandelwal S/O Shri Devendra … vs Central Bureau Of Narcotics … on 20 December, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JP:52679]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous 5th Bail Application No. 11970/2024
Dheeraj Khandelwal S/o Shri Devendra Kumar Khandelwal, Aged
About 36 Years, R/o House No. 80/146, Patel Marg Mansarover
Jaipur (Rajasthan) (The Accused Applicant Is In Judicial Custody
In Central Jail, Jaipur).
----Petitioner
Versus
Central Bureau Of Narcotics, Through Its Standing Counsel
----Respondent
For Petitioner(s) : Mr. S.S. Hora
For Respondent(s) : Mr. Teh Prakash Sharma, PP
HON'BLE MR. JUSTICE FARJAND ALI
(THROUGH VIDEO CONFERENCING)
Order
20/12/2024
1. The jurisdiction of this court has been invoked by way of
filing an application under Section 439 CrPC at the instance of
accused-petitioner. The requisite details of the matter are
tabulated herein below:
S.No. Particulars of the Case 1. FIR Number 02/2020 2. Concerned Police Station CBN Kota 3. District Kota 4. Offences alleged in the FIR Sections 8/21, 8/22 and 8/29 of the NDPS Act 5. Offences added, if any Sections 8/25 & 8/26 of the NDPS Act 6. Date of passing of impugned - order (Downloaded on 11/01/2025 at 12:03:23 AM) [2024:RJ-JP:52679] (2 of 12) [CRLMB-11970/2024] 2. Learned counsel for the petitioners submit that the
petitioners have falsely been implicated in this case; he has
nothing to do with the alleged offences. He has been arraigned
as an accused on the basis of confessional statement of co-
accused Manish. Further, he is languishing in jail since 18.12.2021
and the trial is going on at snail’s pace as out of 31 witnesses only
7 have been examined so far. The statement of the seizure officer
has been placed on record, as per which, non-compliance of
mandatory provisions of the NDPS Act. He further submits that
co-accused Kameshwar has been enlarged on bail and the
petitioner’s case stands on similar or better footing. On these
grounds, learned counsel for the petitioner pray that the
petitioners may be granted the indulgence of bail.
3. Contrary to the submissions of learned counsel for the
petitioner, learned Public Prosecutor opposes the bail application
and submits that the present case is not fit for enlargement of
accused on bail.
4. I have heard considered the submissions made by both the
parties and perused the material available on record.
5. Perusal of the record revealing that the petitioner is behind
the bars in this case since 18.12.2021. The petitioner was not
present at the time of alleged recovery and nothing incriminating
has been recovered at his instance; He has been arraigned as an
accused only on the basis of confessional statement made by the
co-accused Manish Parihar. Four different cases were registered
against the petitioner at the relevant time, out of which, in two
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cases, the Coordinate Bench of this Court has released him on bail
and in one case, this Court has also granted bail to him.
6. It is further revealing from the record that the fourth bail
application of the petitioner was rejected by this Court vide order
dated 31.05.2024 passed in SBCRLMB No.16444/2023. While
rejecting the earlier bail application, the petitioner was given
liberty to approach this Court again if the trial is not concluded
within a reasonable period. It is revealing from the record that the
charge-sheet has been filed way back and the trial has also been
commenced long ago but no endeavours have been made to
conclude it. The petitioner has filed instant bail application
because out of total 31 witnesses, 7 witnesses have been
examined in the trial till date, thus, looking to the snail’s pace
progress of the trial, he has again approach this Court for
protecting his liberty.
7. Another aspect for consideration of the bail plea would be
that this Court is of the view that for the purpose of proving
charge only a reasonable period can be granted to the prosecution
while keeping an accused behind the bars. Still the guilt is to be
proved and as per the theory of Criminal Jurisprudence, he shall
be presumed innocent until the guilt is proved. In a Sessions
case, a trial ought to have commenced and completed within a
Session i.e. one year. When some unavoidable circumstances are
considered than it can be doubled, however in any case a person
cannot be detained for the purpose of giving an opportunity to the
prosecution to substantiate the charge as is not desirable under
the law. Right to have speedy trial is guaranteed by the
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Constitution of India and herein this case the same has been
infringed owing to lackadaisical behavior of the prosecution party
in not presenting the witness in the trial within a reasonable
period. When there appears reasonable ground to presume that
certain infirmity or legal defect would be fatal to the prosecution
still not exercising power of granting bail would mean not honoring
the guarantee of the Constitution given to every individual
regarding protection of his liberty.
8. This Court has made an elaborate discussion with regard to
bail of an under trial accused on the ground of delay in
culmination of the trial. This Court feels that if the accused is
under detention, it is obligatory for the prosecution to complete
the trial within a reasonable period. This Court has passed an
elaborated order dated 08.02.2024 in the case of Lichhaman
Ram @ Laxman Ram Vs. State of Rajasthan (S.B. Criminal
Misc. Bail Application No.5916/2023); the relevant part of the
said order is being reproduced as under:-
7. This Court feels that the nature and gravity of offence and
availability of material in support thereof are not the only factors to
be taken into account while considering a bail application. The fact
that trial is to be concluded within a reasonable period of time is
imperative while considering grant of bail to an accused. It is settled
principle of criminal jurisprudence that there is presumption of
innocence at the pre-conviction stage and the objective for keeping a
person in jail is to ensure his presence to face the trial and to receive
the sentence that may be passed. This detention is not supposed to be
punitive or preventive in nature. An accused is considered to be
innocent until he or she or they are
proven guilty in the court of law.
8. As per the fundamental rights granted to every citizen/person by
the Constitution of India, the accused cannot be expected to languish(Downloaded on 11/01/2025 at 12:03:23 AM)
[2024:RJ-JP:52679] (5 of 12) [CRLMB-11970/2024]in custody for an indefinite period if the trial is taking unreasonably
long time to reach the stage of conclusion. An under trial prisoner,
who is waiting for the trial to complete and reach a conclusion about
his guilt for the alleged crime, is not only deprived of his right to a
speedy trial but his other fundamental rights like right to liberty,
freedom of movement, freedom of practising a profession or carrying
on any occupation, business or trade and freedom to dignity are also
hampered.
9. The Hon’ble Supreme Court vide judgment dated 26.09.2024
passed in V. Senthil Balaji Vs. The Deputy Director,
Directorate of Enforcement [Criminal Appeal
No.4011/2024] has also granted bail to an accused of an
offence under the penal provision of Prevention of Money
Laundering Act. The relevant paras of the said judgment is
reproduced hereunder :-
“24. There are a few penal statutes that make a departure
from the provisions of Sections 437, 438, and 439 of the Code
of Criminal Procedure, 1973. A higher threshold is provided in
these statutes for the grant of bail. By way of illustration, we
may refer to Section 45(1)(ii) of PMLA, proviso to Section
43D(5) of the Unlawful Activities (Prevention) Act, 1967 and
Section 37 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short, ‘NDPS Act‘). The provisions regarding bail
in some of such statutes start with a non obstante clause for
overriding the provisions of Sections 437 to 439 of the CrPC.
The legislature has done so to secure the object of making the
penal provisions in such enactments. For example, the PMLA
provides for Section 45(1)(ii) as money laundering poses a
serious threat not only to the country’s financial system but
also to its integrity and sovereignty.
25. Considering the gravity of the offences in such statutes,
expeditious disposal of trials for the crimes under these
statutes is contemplated. Moreover, such statutes contain
provisions laying down higher threshold for the grant of bail.
The expeditious disposal of the trial is also warranted
considering the higher threshold set for the grant of bail.
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Hence, the requirement of expeditious disposal of cases must
be read into these statutes. Inordinate delay in the conclusion
of the trial and the higher threshold for the grant of bail
cannot go together. It is a wellsettled principle of our criminal
jurisprudence that “bail is the rule, and jail is the exception.”
These stringent provisions regarding the grant of bail, such as
Section 45(1)(iii) of the PMLA, cannot become a tool which
can be used to incarcerate the accused without trial for an
unreasonably long time.”
10. In an another case titled as Javed Gulam Nabi Shaikh Vs.
State of Maharashtra & Anr. (Criminal Appeal
No.2787/2024), the Hon’ble Supreme Court vide its order dated
03.07.2024 has made enunciation of the law in this regard and it
would be very apt to reproduce the relevant paras of the said
order hereunder :-
“7 Having heard the learned counsel appearing for the
parties and having gone through the materials on
record, we are inclined to exercise our discretion in
favour of the appellant herein keeping in mind the
following aspects:
(i) The appellant is in jail as an under-trial prisoner
past four years;
(ii) Till this date, the trial court has not been able to
even proceed to frame charge; and
(iii) As pointed out by the counsel appearing for the
State as well as NIA, the prosecution intends to
examine not less than eighty witnesses.
8 Having regard to the aforesaid, we wonder by what
period of time, the trial will ultimately conclude.
Howsoever serious a crime may be, an accused has a
right to speedy trial as enshrined under the Constitution
of India.
9 Over a period of time, the trial courts and the High
Courts have forgotten a very well settled principle of
law that bail is not to be withheld as a punishment.
10 In the aforesaid context, we may remind the trial courts
and the High Courts of what came to be observed by
this Court in Gudikanti Narasimhulu & Ors. v.
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Public Prosecutor, High Court reported in (1978) 1
SCC 240. We quote:
“What is often forgotten, and therefore
warrants reminder, is the object to keep a
person in judicial custody pending trial or
disposal of an appeal. Lord Russel, C.J., said
[R v. Rose, (1898) 18 Cox] :
“I observe that in this case bail was
refused for the prisoner. It cannot be too
strongly impressed on the, magistracy of
the country that bail is not to be withheld
as a punishment, but that the
requirements as to bail are merely to
secure the attendance of the prisoner at
trial.”
11 The same principle has been reiterated by this Court in
Gurbaksh Singh Sibba v. State of Punjab reported
in (1980) 2 SCC 565 that the object of bail is to secure
the attendance of the accused at the trial, that the
proper test to be applied in the solution of the question
whether bail should be granted or refused is whether it
is probable that the party will appear to take his trial
and that it is indisputable that bail is not to be withheld
as a punishment.
12 Long back, in Hussainara Khatoon v. Home Secy.,
State of Bihar reported in (1980) 1 SCC 81, this court
had declared that the right to speedy trial of offenders
facing criminal charges is “implicit in the broad sweep
and content of Article 21 as interpreted by this Court”.
Remarking that a valid procedure under Article 21 is
one which contains a procedure that is “reasonable, fair
and just” it was held that:
“Now obviously procedure prescribed by law for
depriving a person of liberty cannot be
“reasonable, fair or just” unless that procedure
ensures a speedy trial for determination of the
guilt of such person. No procedure which does
not ensure a reasonably quick trial can be
regarded as “reasonable, fair or just” and it
would fall foul of Article 21. There can, therefore,
be no doubt that speedy trial, and by speedy trial
we mean reasonably expeditious trial, is an
integral and essential part of the fundamental
right to life and liberty enshrined in Article 21.
The question which would, however, arise is as to
what would be the consequence if a person(Downloaded on 11/01/2025 at 12:03:23 AM)
[2024:RJ-JP:52679] (8 of 12) [CRLMB-11970/2024]accused of an offence is denied speedy trial and
is sought to be deprived of his liberty by
imprisonment as a result of a long delayed trial
in violation of his fundamental right under Article
21.”
13 The aforesaid observations have resonated, time and
again, in several judgments, such as Kadra Pahadiya
& Ors. v. State of Bihar reported in (1981) 3 SCC 671
and Abdul Rehman Antulay v. R.S. Nayak reported
in (1992) 1 SCC 225. In the latter the court re-
emphasized the right to speedy trial, and further held
that an accused, facing prolonged trial, has no option :
“The State or complainant prosecutes him. It is,
thus, the obligation of the State or the
complainant, as the case may be, to proceed
with the case with reasonable promptitude.
Particularly, in this country, where the large
majority of accused come from poorer and
weaker sections of the society, not versed in the
ways of law, where they do not often get
competent legal advice, the application of the
said rule is wholly inadvisable. Of course, in a
given case, if an accused demands speedy trial
and yet he is not given one, may be a relevant
factor in his favour. But we cannot disentitle an
accused from complaining of infringement of his
right to speedy trial on the ground that he did
not ask for or insist upon a speedy trial.”
14 In Mohd Muslim @ Hussain v. State (NCT of Delhi)
reported in 2023 INSC 311, this Court observed as
under:
“21. Before parting, it would be important to
reflect that laws which impose stringent
conditions for grant of bail, may be necessary in
public interest; yet, if trials are not concluded in
time, the injustice wrecked on the individual is
immeasurable. Jails are overcrowded and their
living conditions, more often than not, appalling.
According to the Union Home Ministry’s response
to Parliament, the National Crime Records
Bureau had recorded that as on 31 st December
2021, over 5,54,034 prisoners were lodged in
jails against total capacity of 4,25,069 lakhs in
the country. Of these 122,852 were convicts; the
rest 4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that
inmates are at risk of “prisonisation” a term
described by the Kerala High Court in A Convict(Downloaded on 11/01/2025 at 12:03:23 AM)
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“a radical transformation” whereby the prisoner:
“loses his identity. He is known by a number.
He loses personal possessions. He has no
personal relationships. Psychological problems
result from loss of freedom, status,
possessions, dignity any autonomy of
personal life. The inmate culture of prison
turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-
perception changes.”
23. There is a further danger of the prisoner
turning to crime, “as crime not only turns
admirable, but the more professional the crime,
more honour is paid to the criminal” (also see
Donald Clemmer’s ‘The Prison Community’
published in 1940). Incarceration has further
deleterious effects – where the accused belongs
to the weakest economic strata: immediate loss
of livelihood, and in several cases, scattering of
families as well as loss of family bonds and
alienation from society. The courts therefore,
have to be sensitive to these aspects (because in
the event of an acquittal, the loss to the accused
is irreparable), and ensure that trials – especially
in cases, where special laws enact stringent
provisions, are taken up and concluded speedily.”
15 The requirement of law as being envisaged under
Section 19 of the National Investigation Agency Act,
2008 (hereinafter being referred to as “the 2008 Act”)
mandates that the trial under the Act of any offence by
a Special Court shall be held on day-to-day basis on all
working days and have precedence over the trial of any
other case and Special Courts are to be designated for
such an offence by the Central Government in
consultation with the Chief Justice of the High Court as
contemplated under Section 11 of the 2008.
16 A three-Judge Bench of this Court in Union of India v.
K.A. Najeeb reported in (2021) 3 SCC 713] had an
occasion to consider the long incarceration and at the
same time the effect of Section 43-D(5) of the UAP Act
and observed as under : (SCC p. 722, para 17)
“17. It is thus clear to us that the presence of
statutory restrictions like Section 43-D(5) of the
UAPA per se does not oust the ability of the
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
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jurisdiction can be well harmonised. Whereas at
commencement of proceedings, the courts are
expected to appreciate the legislative policy
against grant of bail but the rigours of such
provisions will melt down where there is no
likelihood of trial being completed within a
reasonable time and the period of incarceration
already undergone has exceeded a substantial
part of the prescribed sentence. Such an
approach would safe-guard against the possibility
of provisions like Section 43-D(5) of the UAPA
being used as the sole metric for denial of bail or
for wholesale breach of constitutional right to
speedy trial.”
17 In the recent decision, Satender Kumar Antil v.
Central Bureau of Investigation reported in (2022)
10 SCC 51, prolonged incarceration and inordinate
delay engaged the attention of the court, which
considered the correct approach towards bail, with
respect to several enactments, including Section 37
NDPS Act. The court expressed the opinion that Section
436A (which requires inter alia the accused to be
enlarged on bail if the trial is not concluded within
specified periods) of the Criminal Procedure Code, 1973
would apply:
“We do not wish to deal with individual
enactments as each special Act has got an
objective behind it, followed by the rigour
imposed. The general principle governing delay
would apply to these categories also. To make it
clear, the provision contained in Section 436-A of
the Code would apply to the Special Acts also in
the absence of any specific provision. For
example, the rigour as provided under Section 37
of the NDPS Act would not come in the way in
such a case as we are dealing with the liberty of
a person. We do feel that more the rigour, the
quicker the adjudication ought to be. After all, in
these types of cases number of witnesses would
be very less and there may not be any
justification for prolonging the trial. Perhaps
there is a need to comply with the directions of
this Court to expedite the process and also a
stricter compliance of Section 309 of the Code.”
18 Criminals are not born out but made. The human
potential in everyone is good and so, never write off
any criminal as beyond redemption. This humanist
fundamental is often missed when dealing with
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delinquents, juvenile and adult. Indeed, every saint has
a past and every sinner a future. When a crime is
committed, a variety of factors is responsible for
making the offender commit the crime. Those factors
may be social and economic, may be, the result of
value erosion or parental neglect; may be, because of
the stress of circumstances, or the manifestation of
temptations in a milieu of affluence contrasted with
indigence or other privations.
19 If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or
protect the fundamental right of an accused to have a
speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting
agency should not oppose the plea for bail on the
ground that the crime committed is serious. Article 21
of the Constitution applies irrespective of the nature of
the crime.
20 We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of
criminal jurisprudence that an accused is presumed to
be innocent until proven guilty cannot be brushed aside
lightly, howsoever stringent the penal law may be.
21 We are convinced that the manner in which the
prosecuting agency as well as the Court have
proceeded, the right of the accused to have a speedy
trial could be said to have been infringed thereby
violating Article 21 of the Constitution.
22 In view of the aforesaid, this appeal succeeds and is
hereby allowed. The impugned order passed by the
High Court is set aside.”
11. Similar are the circumstances of this case, thus, looking to
the factual aspect of the matter and looking to the fact that the
petitioner is behind the bars for last more than 3 years and
looking to the snail’s pace progress of the trial, it is deemed
suitable to grant the benefit of bail to the petitioner in the present
matter.
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12. Accordingly, the instant 5th bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner as
named in the cause title shall be enlarged on bail provided he
furnishes a personal bond in the sum of Rs.50,000/- with two
sureties of Rs.25,000/- 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 do so.
(FARJAND ALI),J
Mamta/-
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