Rajasthan High Court – Jodhpur
Dinesh vs State Of Rajasthan (2026:Rj-Jd:19978) on 27 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:19978]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. 4th Bail Application No. 4047/2026
Dinesh S/o Bhagwan Lal Jat, Aged About 33 Years, Resident Of
Rupaji Ka Kheda Police Thana Manfiya District Chittorgarh
Rajasthan Presently Lodged At District Jail Chittorgarh
----Petitioner
Versus
State Of Rajasthan, Through Public Prosecutor
----Respondent
For Petitioner(s) : Mr. Lokesh Mathur
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
REPORTABLE
27/04/2026
1. The jurisdiction of this court has been invoked by way of
filing the instant bail 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 28/2023 2. Concerned Police Station Mandafiya 3. District Chittorgarh 4. Offences alleged in the FIR Sections 8/18 & 29 of the NDPS Act 5. Offences added, if any - 6. Date of passing of impugned 10.03.2026 order
2. In brief, the facts of the case are that on 06.03.2023, Shri
Om Singh, Station House Officer of Police Station Mandafiya, while
accompanied by the police personnel, was conducting a naka-
bandi operation near the Referral Hospital. During the course of
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such checking, a motorcycle without registration number was
noticed approaching from the direction of Bhadsoda and was
accordingly intercepted.
2.1. Upon being stopped, the rider disclosed his identity as
Dinesh Jat. Entertaining suspicion, the police party, in the
presence of independent motbirs, undertook his search in
accordance with the prescribed legal procedure. During such
search, five plastic packets containing, in aggregate, 10 kilograms
and 300 grams of illicit opium, along with the packing material,
were allegedly recovered from the bag carried by the accused.
2.2. Consequent upon the aforesaid recovery, an FIR came to be
registered and investigation was set into motion. Upon culmination
of investigation, a charge-sheet was laid before the competent
court against accused Dinesh Jat for the offences punishable
under Sections 8/18 and 8/29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. The record further reveals
that the accused was arrested on 07.03.2023 and has remained in
judicial custody since then. It is also borne out that three earlier
bail applications preferred on his behalf had already been
dismissed. Thereafter, during the course of trial, statements of
prosecution witnesses PW-05 Arvind and PW-06 Khemaram came
to be recorded. Hence, the instant application for bail.
3. It is contended on behalf of the accused-petitioner that the
petitioner is arrested in this 07.03.2023, 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 case at hand that
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may work against grant of bail to the accused-petitioner and he
has been made an accused based on conjectures and surmises.
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. Upon hearing the submissions advanced by both sides and
upon perusal of the material placed on record, the following
emerges for consideration:
5.1. The petitioner has remained in judicial custody since
07.03.2023 and has thus undergone incarceration for a period
exceeding three years. His earlier three applications seeking
regular bail came to be rejected by this Court, having regard to
the nature and gravity of the accusation, the quantity of
contraband allegedly recovered, and the statutory rigours
engrafted under Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985. While dismissing the third bail application,
being S.B. Criminal Misc. Bail Application No. 6725/2025, vide
order dated 04.12.2025, this Court had, however, directed the
learned trial Court to expedite the proceedings and endeavour to
conclude the trial with promptitude.
5.2. The present successive application, however, rests upon a
distinct and supervening circumstance, namely, that the
petitioner’s fundamental right to a speedy, fair and meaningful
trial, which inheres in Article 21 of the Constitution of India, now
stands seriously jeopardised on account of the inordinate delay in
conclusion of the proceedings. The grievance projected is not
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[2026:RJ-JD:19978] (4 of 11) [CRLMB-4047/2026]merely of prolonged custody, but of custody bereft of any
proximate likelihood of culmination of trial.
5.3. The learned Public Prosecutor has apprised to this Court the
updated status of the case and has fairly submitted that the
petitioner is not reported to possess any criminal antecedents. It
further emerges that although twenty-three witnesses were
originally cited by the prosecution, only six witnesses have been
examined thus far, despite lapse of substantial time.
5.4. The matter has thereafter taken a further turn. During
pendency of the trial, the investigating agency undertook further
investigation under Section 173(8) Cr.P.C., resulting in the arrest
of additional accused persons, namely Rahul, Ajay, Abhishek, Om
Prakash and Jafar, followed by filing of a supplementary charge-
sheet introducing further witnesses and additional material.
Consequent thereupon, the learned trial Court has directed
consolidation of the case of the newly arraigned accused with that
of the present petitioner.
5.5. The inevitable legal consequence of such consolidation is that
charges are yet to be framed against the subsequently arrested
accused persons and, upon their joinder, the trial would
necessarily require recommencement from the appropriate stage
so as to secure a fair opportunity to all accused persons. In
practical terms, the proceedings shall substantially commence
afresh, witnesses already examined may require reconsideration
or re-summoning depending upon the stage and defence rights,
and the clock of trial would stand materially reset. Thus, what had
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progressed minimally till date now faces further retardation,
rendering the prospect of early culmination remote and uncertain.
5.6. This Court cannot remain oblivious to the reality that where
only six witnesses have been examined in more than three years,
and the proceedings are now burdened with supplementary
investigation, newly added accused persons, fresh framing of
charges, and the consequential procedural restart, the trial is
likely to remain pending for an indeterminate period. The
conclusion of the case, therefore, no longer appears imminent but
speculative.
5.7. In these circumstances, the petitioner’s custody has ceased to
retain the complexion of a merely preventive detention pending
trial and has assumed the attributes of punitive pre-conviction
incarceration, a concept fundamentally discordant with settled
criminal jurisprudence wherein every accused is clothed with the
presumption of innocence until proven guilty in accordance with
law.
5.8. The Hon’ble Supreme Court has repeatedly declared that the
right to speedy trial constitutes an inseverable facet of Article 21.
In Hussainara Khatoon v. State of Bihar (AIR 1979 SC
1369) it was recognised that oppressive delay in trial renders
continued detention constitutionally suspect. In Kadra Pahadiya
v. State of Bihar (1981 Supp SCC 308) the Court reiterated
that undertrials cannot be left to languish in prisons owing to
systemic delay. In Satender Kumar Antil v. CBI ((2002) 10
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SCC 51), it was reaffirmed that liberty cannot be sacrificed at the
altar of procedural stagnation.
5.9. Even in prosecutions under the NDPS Act, where stringent
statutory conditions apply, constitutional courts have recognised
that indefinite incarceration cannot be countenanced. In Supreme
Court Legal Aid Committee v. Union of India ((1994) 6 SCC
731) it was held that prolonged detention may justify release
notwithstanding statutory severity. Hon’ble Apex Court in Union
of India Vs. K. A. Najeeb ((2021) 3 SCC 713) held that
statutory restrictions cannot eclipse the constitutional mandate
flowing from Article 21 where trial is unlikely to conclude within a
reasonable time. Likewise, in Rabi Prakash v. State of Odisha
(SLP (Crl.) No.4169/2023 decided on 13.07.2023), it was
emphasised that personal liberty remains paramount and
prolonged custody without foreseeable conclusion of trial cannot
be justified merely by invoking statutory fetters.
5.10. It is also considered apposite to advert to the recent
pronouncement of the Hon’ble Supreme Court in Mohd Muslim @
Hussain v. State (NCT of Delhi), in Special Leave Petition
(Crl.) No.915 of 2023 vide order dated 28.03.2023, wherein
while interpreting the rigours of Section 37 of the NDPS Act, it was
lucidly expounded that the said provision cannot be construed in a
manner so absolute as to render grant of bail virtually impossible.
Their Lordships observed that the satisfaction contemplated under
Section 37 regarding innocence of the accused can only be taken
prima facie at the stage of bail, for a literal construction would
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convert the provision into an instrument of punitive and
unsanctioned preventive detention. The accused therein was
enlarged on bail considering the long period of incarceration
undergone. The relevant paragraphs of Mohd. Muslim @
Hussain (supra) relevant to the present matter are reproduced
below:
“18. The conditions which courts have to be
cognizant of are that there are reasonable grounds
for believing that the accused is “not guilty of such
offence” and that he is not likely to commit any
offence while on bail. What is meant by “not guilty”
when all the evidence is not before the court? It can
only be a prima facie determination. That places the
court’s discretion within a very narrow margin. Given
the mandate of the general law on bails (Sections
436, 1 Special Leave Petition (CRL.) NO(S). 915 of
2023, decided on 28.03.2023. 437 and 439, CrPC)
which classify offences based on their gravity, and
instruct that certain serious crimes have to be dealt
with differently while considering bail applications,
the additional condition that the court should be
satisfied that the accused (who is in law presumed to
be innocent) is not guilty, has to be interpreted
reasonably. Further the classification of offences
under Special Acts (NDPS Act, etc.), which apply over
and above the ordinary bail conditions required to be
assessed by courts, require that the court records its
satisfaction that the accused might not be guilty of
the offence and that upon release, they are not likely
to commit any offence. These two conditions have
the effect of overshadowing other conditions. In
cases where bail is sought, the court assesses the
material on record such as the nature of the offence,
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likelihood of the accused co-operating with the
investigation, not fleeing from justice: even in serious
offences like murder, kidnapping, rape, etc. On the
other hand, the court in these cases under such
special Acts, have to address itself principally on two
facts: likely guilt of the accused and the likelihood of
them not committing any offence upon release. This
court has generally upheld such conditions on the
ground that liberty of such citizens have to – in cases
when accused of offences enacted under special laws
– be balanced against the public interest.
19. A plain and literal interpretation of the conditions
under Section 37 (i.e., that Court should be satisfied
that the accused is not guilty and would not commit
any offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore,
the only manner in which such special conditions as
enacted under Section 37 can be considered within
constitutional parameters is where the court is
reasonably satisfied on a prima facie look at the
material on record (whenever the bail application is
made) that the accused is not guilty. Any other
interpretation, would result in complete denial of the
bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act.”
(Emphasis Supplied)
The ratio flowing from the aforesaid judgment is that at the
stage of adjudication of a bail application under Section 439
Cr.P.C., the Court is not expected to record a definitive acquittal-
oriented finding. What is required is a tentative and prima facie
appraisal of the material to ascertain whether continued detention
is justified and whether the embargo of Section 37 stands
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attracted in its true constitutional sense. An accused is not
required to establish his innocence as though standing trial;
rather, the burden lies upon the prosecution to justify continued
curtailment of liberty.
5.11. This Court is further of the considered opinion that where an
apparent conflict arises between guaranteed fundamental rights
under Part III of the Constitution and the restrictive operation of a
statutory embargo contained in a penal enactment, the
constitutional command must receive precedence. Fundamental
rights are not matters of legislative grace; they are solemn
guarantees forming part of the basic framework of constitutional
governance. Statutory provisions, however stringent, must
therefore operate within constitutional discipline and cannot be
construed so as to emasculate or render illusory those rights
which the Constitution has placed beyond ordinary encroachment.
5.12. It is trite that personal liberty under Article 21 is not
confined merely to protection against unlawful arrest, but extends
to a just, fair and reasonable procedure, expeditious adjudication,
humane treatment, and freedom from arbitrary or unduly
prolonged incarceration. Consequently, where a statutory
restriction on bail, though valid in its field, is sought to be applied
in a manner resulting in indefinite custody, uncertain trial
timelines, or punishment prior to conviction, the Court is duty-
bound to interpret such restriction harmoniously with
constitutional guarantees rather than mechanically in its most
rigid form.
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5.13. Section 37 of the NDPS Act undoubtedly embodies
legislative anxiety against grave narcotic offences and mandates a
heightened threshold for grant of bail. Yet, the said provision
cannot be read as a charter for perpetual detention nor as a
device to suspend constitutional liberties for an undefined
duration. The rigour of the statute must yield, to the extent
necessary, where literal enforcement would produce manifest
injustice or constitutional infirmity.
5.14. Courts, while preserving the balance between societal
interest in prosecuting crime and the individual’s inalienable right
to liberty, must remain vigilant that such balance is not distorted
by extraordinary delay, stagnation of trial, absence of criminal
antecedents, and no immediate likelihood of conclusion of
proceedings. In such a situation, continued incarceration ceases to
serve the cause of justice and instead assumes a punitive
complexion.
5.15. Jurisprudence equally acknowledges that while the
prosecution must be afforded a fair and reasonable opportunity to
establish its case, such opportunity cannot be limitless when the
accused remains incarcerated. In an ordinary sessions trial, a
reasonable outer period is expected within one year and, in
exceptional complexities, may extend further. Yet, where years
pass without substantial progress and the proceedings are now
compelled to recommence effectively from an earlier stage,
continued detention becomes manifestly excessive.
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5.16. Tested on the aforesaid principles, the petitioner’s custody
has already traversed far beyond a reasonable threshold. Only six
witnesses have been examined over more than three years. The
subsequent filing of supplementary charge-sheet, addition of
multiple accused persons, fresh framing of charges, and the near
inevitability of recommencement of trial have rendered the
possibility of early disposal wholly illusory.
5.17. In the considered view of this Court, to keep the petitioner
incarcerated for an indefinite future while the trial remains stalled
and structurally delayed would be oppressive, disproportionate
and constitutionally indefensible. Continued deprivation of liberty,
in such exceptional circumstances, would amount to punishment
before adjudication an outcome unknown to law and impermissible
under the constitutional framework.
6. Accordingly, the instant bail application under Section 439
Cr.P.C. is allowed and it is ordered that the accused-petitioner,
named above, 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
109-Mamta/-
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