Rajasthan High Court – Jodhpur
Salim Khan vs State Of Rajasthan (2025:Rj-Jd:665) on 6 January, 2025
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2025:RJ-JD:665]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous 2nd Bail Application No. 10603/2024
Salim Khan S/o Shri Imam Ali, Aged About 23 Years, R/o 12
Kishnawali Dhani, P.s. Jaitsar, Dist. Sriganganagar,raj. (Presently
Lodged In Sub Jail, Suratgarh)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Dhirendra Singh, Sr. Advocate
with Mr. Jagdish Singh.
For Respondent(s) : Mr. Urja Ram Kalbi, PP.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order
06/01/2025
This second application for bail under Section 483 of BNSS
has been filed by the petitioner who has been arrested in
connection with F.I.R. No.228/2022 registered at Police Station
Suratgarh City, District Sri Ganganagar, for offences under
Sections 8/21, 22 and 29 of the NDPS Act.
Learned counsel for the petitioner submitted that the co-
accused Allarakha (S.B. Cr. Misc. Bail Application No.323/2024)
has already been enlarged on bail by a coordinate Bench of this
Court vide order dated 02.12.2024. Learned counsel submitted
that the case of the present petitioner is not distinguishable from
that of the co-accused Allarakha who has already been enlarged
on bail.
Learned counsel submitted that the petitioner is in judicial
custody; investigation has already been completed and the trial of
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the case is likely to consume sufficiently long time. On these
grounds, he implored the Court to enlarge the petitioner on bail.
Per contra, learned Public Prosecutor has opposed the bail
application. However, he was not in position to refute the fact that
the case of the present petitioner is not distinguishable from that
of co-accused Allarakha who has already been enlarged on bail by
a coordinate Bench of this Court.
Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the material available on record.
The order dated 02.12.2024 is reproduced herein below for
ready reference:
“1. The jurisdiction of this Court has been invoked by way of filing
the instant bail application under Section 439 Cr.P.C. 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 228/2022
2. Concerned Police Station Suratgarh City
3. District Sri Ganganagar
4. Offences alleged in the Sections 8/21, 22, 25
FIR and 29 of the NDPS Act
5. Offences added, if any –
6. Date of passing of 03.01.2024
impugned order
2. Briefly stated, facts of the case are that on 12.05.2022 at
05.40 p.m., Mr. Motaram, SI, Officiating SHO, Police Station
Suratgarh with his team intercepted a Swift car on the road going
from Manaksar to Vijaynagar near DPS School. In the said car
bearing registration No.RJ-44-CA-0416 two persons, namely,
Allarakha and Salim Khan were sitting. On search being
conducted, 18 grams smack and 2000 number of Tramadol HCE
SR 100 mg TMD-100 SR having weight 642 grams were recovered
from their possession, upon which the accused were arrested and
after usual investigation, a charge-sheet for the offences under
Section 8/21, 22 and 29 of the NDPS Act was submitted against
them.
3. It is contended on behalf of the accused-petitioner that no
case for the alleged offences is made out against him and his
incarceration is not warranted. There are no factors at play in the
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case at hand that may work against grant of bail to the accused-
petitioner and he has been made an accused based on
conjectures and surmises. There is gross negligence on part of
the investigating agency and the mandatory provisions of the
NDPS Act have not been followed during investigation. The trial is
going on at a snail’s pace as out of 24 witnesses, only 2 have
been examined so far. The petitioner is languishing in jail for last
2 years and 7 months and the trial is likely to take a lot of time.
Hence, it is prayed that the petitioner may be released on bail.
4. 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.
5. I have considered the submissions made by the parties and
have perused the material available on record.
6. Perusal of the record revealing that the petitioner is behind
the bar for last more than 2 years and 7 months and out of total
24 witnesses, only 2 witnesses have been examined in the trial till
date, thus, looking to the snail’s pace progress of the trial, he has
again approached this Court for protecting his liberty.
7. Now it is not in dispute that the petitioner is behind the bar
in this case since long. It is a case of the prosecution that
petitioner was apprehended in connection with the recovery of
huge quantity of Tramadol tablets and smack. 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.
8. It is a firm view of this Court that an under trial prisoner
cannot be incarcerated for an indefinite period. Only a reasonable
time can be granted to the prosecution to prove its case and at
the same time, the accused cannot be left languishing in jail for
want of evidence against him as he required to be presumed
innocent until the guilt is proven.
9. Normally, trial of a sessions case is completed within a
period of one year from its commencement, however, for some
unavoidable and inevitable circumstances, the period can be
extended but keeping the accused detained in jail for more than
three years for the purpose of production of evidence is
detrimental to the interest of accused detained in jail.
10. 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(Downloaded on 06/01/2025 at 09:40:30 PM)
[2025:RJ-JD:665] (4 of 11) [CRLMB-10603/2024]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 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.
11. 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. 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.
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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.”
12. 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. 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.”
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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 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(Downloaded on 06/01/2025 at 09:40:30 PM)
[2025:RJ-JD:665] (7 of 11) [CRLMB-10603/2024]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 Prisoner v. State reported in 1993
Cri LJ 3242, as “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(Downloaded on 06/01/2025 at 09:40:30 PM)
[2025:RJ-JD:665] (8 of 11) [CRLMB-10603/2024]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 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,
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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 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.
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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.”
13. In Rabi Prakash Vs. State of Odisha passed in Special
leave to Appeal (Crl.) No.(s) 4169/2023, Hon’ble the Apex Court
has again passed an order dated 13th July, 2023 dealing this
issue and has held that the provisional liberty(bail) overrides the
prescribed impediment in the statute under Section 37 of the
NDPS Act as liberty directly hits one of the most precious
fundamental rights envisaged in the Constitution, that is, the
right to life and personal liberty contained in Article 21.
14. It is also relevant to note that no other under the NDPS act
has been registered against the petitioner. Besides the delay,
arguments have also been placed regarding total non-compliance
of Section 52A of the NDPS Act as well as the guidelines issued
by the Central Government through Standing Order No.1/1988
and 1/1989. If the grounds raised above are adjudicated finally
in favour of the petitioner, he may get acquittal and in that
situation, keeping him behind the bars would not be justifiable.
Hence, considering the overall facts and circumstances of the
case and the fact that the petitioner is incarcerated from last
more 2 years and 7 months and looking to the fact that till date
only 2 witnesses have been examined, there seems high
probability that the trial may take long time to conclude thus, it
is deemed suitable to grant the benefit of bail to the petitioner.
15. Accordingly, the instant 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.”
Having considered the rival submissions, facts and
circumstances of the case, this Court prima facie finds that the
case of the present petitioner is not distinguishable from that of
the above named co-accused who has already been enlarged on
bail. This Court further prima facie finds that the prosecution has
not shown any apprehension of the petitioner fleeing away from
justice or involving himself in a case of similar nature in case he is
enlarged on bail.
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Thus, without expressing any opinion on merits/demerits of
the case, this Court is inclined to enlarge the petitioner on bail.
Consequently, the second bail application under Section 483
of BNSS is allowed. It is ordered that the accused-petitioner Salim
Khan S/o Shri Imam Ali arrested in connection with F.I.R.
No.228/2022 registered at Police Station Suratgarh City, District
Sri Ganganagar, shall be released on bail, if not wanted in any
other case, provided he furnishes a personal bond of
Rs.1,00,000/- and two sureties of Rs.50,000/- each, to the
satisfaction of learned trial court, for his appearance before that
court on each & every date of hearing and whenever called upon
to do so till completion of the trial.
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.
(KULDEEP MATHUR),J
225-Tikam/-
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