AI Structured Summary
Not yet generated for this judgment
Judgment
Under-trial accused-petitioner languishing in jail since 4th of November, 2016, for offence under Sections 8(c), 22(c), 9A, 23(c) and 29 of the NDPS
Act, in connection with Sessions Case No.192/2017, pending before the Court of Special Judge, NDPS Cases, Udaipur (for short, ‘learned trial
Court’), has laid this second post-arrest bail application. The said sessions case is arising out of FIR No.DRI/UZU/JRU/19/INI-4/2016 dated
26.04.2017.
First bail application of the petitioner bearing No.4722/2017 was dismissed on 18.08.2017 by a detailed order.
Arguing on this second bail application, it is submitted by learned Senior Counsel, Mr. Mahesh Bora, that charge-sheet in the matter was filed before
rejection of first bail application but there is no progress much less material progress in the trial since order dated 18.08.2017. Learned Senior
Counsel has argued that so far even charges have not been framed by learned trial Court. Learned Senior Counsel would contend that at the behest of
accused-petitioner, an application under Section 227 of Cr.P.C. was filed on 17.02.2018 before the learned trial Court with the aid of supporting
documents, highlighting a very vital fact that since 01.12.2012 he had no access to the industrial plot situated at RIICO Industrial Area, Dhoinda,
District Rajsamand, yet the learned trial Court, has not made any endeavor to examine the same till date, is a fact of great significance, highlighting
substantial change in the circumstances after rejection of the first bail application. Mr. Bora, learned Senior Counsel submits that if the documents
are objectively examined then undeniably no sufficient ground survives for proceeding against petitioner in the matter.Â
Learned Senior Counsel has further submitted that the industrial plot of Srinath Industries, Dhoinda, District Rajsamand, was handed over by the
petitioner on lease to main accused Subhash Dudhani as back on 01.12.2012 for five years and the lease period expired on 30.11.2017, therefore,
recovery of any incriminating material during raid by DRI on 28.10.2016 cannot be attributed to him. Learned Senior Counsel has further urged that
as per prosecution case, manufacture of methaqualone commenced in the year 2013, and therefore, it is rather difficult to comprehend that accused-
petitioner had any causal connection with the same inasmuch as industrial plot of Srinath Industries at Dhoinda, Rajsamand was leased out prior to
it. Mr. Bora would urge that sans recovery of any contraband from Srinath Industries and industrial plot allotted to the petitioner, prima facie by no
means he can be castigated for the charged offence. Lastly, learned Senior Counsel has submitted that solely on account of some past relationship
of the petitioner with main accused Subhash Dudhani, his involvement in commission of the charged offence cannot be assumed in the backdrop of
peculiar facts and circumstances of the case.
Per contra, Mr. B.P. Bohra, learned counsel for UOI has vehemently argued that apparently there is no change in the circumstances, much less
substantial change, after rejection of first bail application. Mr. Bohra, has strenuously urged that right of an accused to lay successive bail
application is not circumscribed by the Legislature but then for consideration of second bail application, it is pre-requisite for the accused to make out
new points and prove substantial change in circumstances. Elaborating his submissions in this behalf, learned counsel Mr. Bohra has argued that no
new points or substantial change in the circumstances are forthcoming in this matter. Learned counsel, Mr. Bohra, while taking exception to the
documents allegedly relied upon by the accused-petitioner, has contended that those documents were not part of the challan papers.Â
Mr. Bohra has further argued that learned trial Court, while rejecting the second bail application of the petitioner, has considered those documents and
opined that there is no change, much less substantial change, in the circumstances, after rejection of first bail application, therefore, it would not be
appropriate to grant any indulgence to the petitioner. Mr. Bohra, while harping on close proximity of the petitioner with main accused Subhash
Dudhani since 2006, being his partner, and the statements of main accused as well as petitioner under Section 67 of the NDPS Act, has contended
that requisite material is available on record to connect the accused-petitioner with charged offences. Lastly, learned counsel has taken shelter of
Section 37 of the NDPS Act for the thwarting bail plea of petitioner.
I have bestowed my consideration to the arguments advanced at Bar and perused the materials available on record including the documents furnished
by petitioner.
Upon examining the matter in its entirety, in my opinion, it would not be appropriate to make any comment about genuineness or authenticity of the
documents, relied upon by petitioner, more particularly, when learned trial Court is seized of the matter. It is not in dispute that at the bahest of the
petitioner, an application under Section 227 Cr.P.C. has been filed for discharging him and the same is pending consideration before the learned trial
Court since 17.02.2018. Essentially, the entire foundation of the application of accused-petitioner, under Section 227 Cr.P.C. is those documents and
by placing heavy reliance on the said documents, the petitioner has urged before learned trial Court to discharge him for the offences. Thus, the
whole endeavor of the petitioner is to impress upon the learned trial Court that if the documents are objectively examined then, it would obviously
persuade the Court to infer insufficiency of ground for proceeding against him.Â
As the petitioner has already approached learned trial Court by laying appropriate application under Section 227 Cr.P.C., sans any change in the
circumstances, much less substantial change, I feel dissuaded to entertain this second bail application. However, considering a very significant fact
that petitioner is under incarceration since 04.011.2016 and the trial has not materially progressed, inasmuch as, even charges have not been framed, I
deem it just and appropriate to direct learned trial Court to consider and decide the application of petitioner under Section 227 Cr.P.C. expeditiously,
preferably within two months for today.
My aforesaid view finds support by a decision of Supreme Court in the matter of Moti Ram & Ors. Vs. State of Madhya Pradesh, reported in AIR
1978 SC 1594, wherein the Court held:
“The consequence of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations
of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is
prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent
members of his family.â€
Before parting, it is further observed that if there is no material progress in the trial three months posterior from today, then petitioner shall be at liberty
to renew his prayer for grant of bail before learned trial Court.
In view thereof, the second bail application of the petitioner is dismissed subject to the above observations.