Dinesh Kumar vs State Of Rajasthan (2025:Rj-Jd:24100) on 19 May, 2025

Rajasthan High Court – Jodhpur

Dinesh Kumar vs State Of Rajasthan (2025:Rj-Jd:24100) on 19 May, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:24100]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
   S.B. Criminal Miscellaneous 3rd Bail Application No. 936/2025

Dinesh Kumar S/o Puna Ram, Aged About 18 Years, R/o
Chirdiya, Ps Samdari, Dist Balotra, Raj (At Present Lodged In
Central Jail Sri Ganganagar)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through PP
                                                                 ----Respondent


For Petitioner(s)         :     Mr. Bajrang Singh Rathore
For Respondent(s)         :     Mr. Lalit Kishor Sen, PP



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG

Order

19/05/2025

The present third bail application has been filed under

Section 483 BNSS (439 Cr.P.C.). The petitioner has been arrested

in connection with FIR No.153/2022 Police Station Purani Abadi,

District Sriganganagar for the offences punishable under Section

8/22 of the NDPS Act. The first bail application was dismissed as

not pressed on 28.07.2022 by this Court and the second bail

application was dismissed as not pressed on 07.07.2023 by this

Court.

Learned counsel for the petitioner that the accused-petitioner

has been in judicial custody since 08.06.2022 and trial of the case

is yet pending. Further, counsel submits that the co-accused

Subhash Bishnoi has already been enlarged on bail by this Court.

In support of his contentions, learned counsel placed reliance on

the recent order dated 13.07.2023 passed by Hon’ble the

Supreme Court in the case of Rabi Prakash vs. The State of Odisha

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(Special Leave to Appeal (Crl.) No.4169/2023), wherein Hon’ble

the Supreme Court held as under:-

“3. We are informed that the trial has commenced
but only 1 out of the 19 witnesses has been
examined. The conclusion of trial will, thus, take
some more time.

4. As regard to the twin conditions contained in
Section 37 of the NDPS Act, learned counsel for the
respondent – State has been duly heard. Thus, the
1st condition stands complied with. So far as the
2nd condition re: formation of opinion as to
whether there are reasonable grounds to believe
that the petitioner is not guilty, the same may not
be formed at this stage when he has already spent
more than three and a half years in custody. The
prolonged incarceration, generally militates against
the most precious fundamental right guaranteed
under Article 21 of the Constitution and in such a
situation, the conditional liberty must override the
statutory embargo created under Section 37(1)(b)

(ii) of the NDPS
Act.”

Hon’ble the Supreme Court in the case of Union of India Vs.

K.A. Najeeb reported in (2021) 3 SCC 713, while dealing with the

cases where fetters are placed on Court’s power to grant bail and

the trial has not been completed within a reasonable time,

observed as under:

“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
jurisdiction can be well harmonised. Whereas at
commencement of proceedings, the courts are
expected to appreciate the legislative policy
against grant of bail but th 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 safeguard against the possibility
of provisions like Section 43-D(5) of the UAPA

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being used as the sole metric for denial of bail or
for wholesale breach of constitutional right to
speedy trial.”

A coordinate Bench of this Court in the case of Umesh Vyas

vs. State of Rajasthan (S.B. Criminal Misc. II Bail Application

No.14958/2022), vide order dated 17.03.2023, also observed as

follows:

“The Hon’ble Supreme Court in the cases of Abdul
Majeed Lone Vs. Union Territory of Jammu and
Kashmir [Special Leave to Appeal (Crl.)
No.3961/2022], Amit Singh Moni Vs. State of
Himachal Pradesh (Criminal Appeal No.668/2020),
Tapan Das Vs. Union of India [Special Leave to
Appeal (Criminal) No.5617/2021], Kulwant Singh
Vs. State of Punjab [Special Leave to Appeal
(Criminal) No.5187/2019], Ghanshyam Sharma
Vs. State of Rajasthan [Special Leave to Appeal
(Criminal) No.5397/2019], Nadeem Vs. State of
UP [Special Leave to Appeal (Criminal)
No.1524/2022] and Mukesh Vs. The State of
Rajasthan [Special Leave to Appeal (Criminal)
No.4089/2021] has granted bail to the accused
persons, against whom the allegations are of
transporting or possessing narcotic contraband
above commercial quantity, on the ground of
custody period and taking into consideration the
fact that the trial against the said accused persons
will take time in completion. The Hon’ble Supreme
Court has ordered for release of the accused
persons who were in custody from two years to
four years. Learned Public Prosecutor has opposed
the bail application.

Having regard to the totality of the facts and
circumstances of the case, I deem it appropriate to
allow this fifth bail application solely on the ground
of custody period of the accused petitioner and
keeping in view the fact that the trial against him
has not been completed till date.

Accordingly, without expressing any opinion
on the merits of the case, this third bail application
filed under Section 439 Cr.P.C. is allowed and it is
directed that petitioner Umesh Vyas S/o Shri
Ganeshlal Ji shall be released on bail in connection
with FIR No.15/2019 of Police Station Charbhuja,
District Rajsamand provided he executes a
personal bond in a sum of Rs.50,000/- with two
sound and solvent sureties of Rs.25,000/- each to
the satisfaction of learned trial court for his

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appearance before that court on each and every
date of hearing and whenever called upon to do so
till the completion of the trial.”

Learned counsel for the petitioner has further placed reliance

on the decision dated 28.03.2023 rendered by Hon’ble the

Supreme Court in Mohd Muslim @ Hussain Vs. State (NCT of

Delhi) in 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

and 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.

The petitioner has been in the judicial custody since

08.06.2022 i.e. almost three years and the trial of the case will

take sufficiently long time. Therefore, the benefit of bail may be

granted to the accused-petitioner.

Learned Public Prosecutor has opposed the prayer made by

the counsel for the petitioner.

I have considered the arguments advanced before me and

gone through the material available on record.

It is not disputed that the accused petitioner has so far

suffered incarceration of about 3 years and trial is still going on.

So far as Section 37 of the NDPS Act is concerned, the embargo

put on grant of bail under Section 37 of the Act is not total. In the

provision, certain exceptions exist within Section 37 itself and for

those exceptions, bail can be granted. In the present case, the

petitioner has so far suffered incarceration of about 3 years,

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therefore, looking to the prolonged custody of the petitioner it

would not be appropriate to invoke the rigor envisaged under

Section 37 of NDPS Act.

Accordingly, the third bail application under Section 483

BNSS is allowed and it is ordered that the accused-petitioner –

Dinesh Kumar S/o Puna Ram, shall be enlarged on bail in FIR

No.153/2022 Police Station Purani Abadi, District Sriganganagar

provided he furnishes a personal bond in the sum of Rs.2,00,000/-

with two sureties of Rs.1,00,000/- 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.

(MANOJ KUMAR GARG),J
36-GKaviya/-

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