Kalu Ram And Others vs Union Of India

Kuldeep Mathur, J

These instant bail applications have been filed by the petitioners under Section 439 Cr.P.C in connection with FIR No.VIII(IO)07/NCB/JZU/2019 registered at Police Station NCB, District Jodhpur, for the offences under Sections 8/18, 25 and 29 of NDPS Act.

As per the prosecution story, opium weighing 8Kgs 230gms was recovered from Scorpio. The petitioners were found sitting in the said Scorpio having registration No.RJ-19UB-0517. Learned counsel for the petitioners submitted that co-accused-Hari Ram and Pabu Ram were also found sitting in the same car besides the present petitioners. Learned counsel submitted that petitioners are facing incarceration since 13.04.2019. Learned counsel submitted that co-accused-Pabu Ram has already been enlarged on bail by Hon’ble the Supreme Court vide order dated 03.02.2022 while deciding SLP (Crl.) No.7461/2021 (Paburam Vs. Union of India) on the ground that he is in jail since 14.04.2019 and the completion of trial in the matter is likely to take time. Learned counsel submitted that in the order passed by Hon’ble the Supreme Court, it had been made clear that the order shall not be cited as a precedent for claiming parity in other matter or by the other accused in this case. However, co-accused-Hari Ram has also been enlarged on bail by Hon’ble the Supreme Court vide order dated 07.02.2023 while deciding Special Leave to Appeal (Crl.) No.11580/2022 (Hari Ram Vs. Union of India) on the same grounds. Learned counsel submitted that after passing of the aforesaid orders, till date only three witnesses have been examined by the competent criminal court out of 14 prosecution witnesses. Learned counsel submitted that in view of the fact that even after passing of more than one year from the orders of Hon’ble the Supreme Court, the trial has not progressed and there is no likelihood of trial getting completed in the near future. Learned counsel further submitted that the co-accused-Hari Ram and Paburam have already been enlarged on bail by the Hon’ble Supreme Court. He further submitted that the case of the accused-petitioners is not distinguishable with that of the co- accused. Lastly, learned counsel further submitted that the petitioners are in custody since 13.04.2019 and the trial is likely to take a long time to conclude and no fruitful purpose would be served by keeping the accused-petitioners behind the bars till disposal of the case.

Learned counsel submitted that 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 where the trial has not been completed within 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 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 safeguard 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.”

Per contra, learned Special Public Prosecutor, NCB opposed the bail applications. Learned Special Public Prosecutor however, was not in position to dispute the fact that the co-accused-Hari Ram and Paburam have already been enlarged on bail by Hon’ble the Supreme Court. Learned Special Public Prosecutor has also not in disputed that out of 14 prosecution witnesses only three have been examined till date.

Heard. Considering the arguments advanced by the counsel for the parties and looking to the overall facts and circumstances of the case that Hari Ram and Paburam have already been enlarged on bail by Hon’ble the Supreme Court, this court deems it just and proper to enlarge the accused-petitioners on bail.

Accordingly, the bail applications under Section 439 Cr.P.C. are allowed and it is ordered that the accused-petitioners- (1).Kalu Ram S/o Shri Roopa Ram and (2).Muknaram S/o Lt. Sh. Kishnaram shall be enlarged on bail in connection with FIR No.VIII(IO)07/NCB/JZU/2019 registered at Police Station NCB, District Jodhpur, provided they furnish a personal bond in the sum of Rs.1,00,000/- each with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for their appearance before the court concerned on all the dates of hearing as and when called upon to do so.