JUDGMENT :

1. By this application, the applicant prays for his release on bail under Section 439 of the Code of Criminal Procedure since he has been arrested and prosecuted for the offences punishable under Section 8(c), r/w Section 20b(ii)(C) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

2. Shorn of unnecessary details, a few facts germane for disposal of this application can be summarized as under.

3. Pursuant to an information by the respondent, a car bearing Registration No. MH-05-AX-6577 was intercepted on Nashik Phata, Pune around 10.00 hours to 12.00 hours on 26.07.2018. During search, it was found that the car was loaded with approximately 200 kgs of Ganja, which was a contraband. After weighing, it was noticed that the quantity was around 180.320 kgs. Necessary sampling, sealing and labeling was carried out by the Investigating Agency as also the personal search of the applicant. Statement under Section 67 of the NDPS Act came to be recorded. There are two accused. After investigation, a charge-sheet is filed in the Special Court.

4. First application for bail preferred by the applicant came to be rejected by the Special Court vide order dated 02.01.2020.

5. At the outset, learned Counsel for the applicant invited my attention to the fact that the applicant has been incarcerated for more than 5 years, who is the only earning member of his family and there is no likelihood of concluding the trial in near future. He may be released on bail by imposing the conditions to which he would abide by. Learned Counsel has also advanced few submissions on the merits of the case by stating that definition of contraband as given in the panchanama, does not match to that of the definition of Ganja, as envisaged under the NDPS Act. To substantiate his contention, he placed reliance on the order of this Court bench at Aurangabad, dated 30.11.2021 (Bail Application No.1329 of 2021). It is also submitted that in view of the various pronouncements of this Court on identical facts, the applicants have been enlarged on bail.

6. Per contra, learned Special Public Prosecutor while strongly objecting the release of the applicant on bail, contended that looking to the enormity of the offences, in the sense, it being a commercial quantity of Ganja seized from the possession of the applicant and as the trial has already commenced, the applicant may not be released on bail. It is further contended that this is essentially an offence against the Society having impact on the health of the citizens and, therefore, the applicant may not be released.

7. The learned Special Public Prosecutor expressed his apprehension of abscondence of the applicant in case of his release as well as influencing and coercing the prosecution witnesses, especially the panchas. He also expressed his apprehension of repeating similar offence by the applicant in case of his release.

8. Admittedly, the applicant has been incarcerated for nearly 5 years. Though the trial has already commenced, the learned Special Public Prosecutor submits that a direction be issued to expedite the trial, which would be concluded within a period of one year.

9. Section 20b(ii)(C) of the NDPS Act provides minimum imprisonment of 10 years in case of commercial quantity of cannabis, which may extend to 20 years. Even if the minimum sentence of 10 years is taken into consideration, the applicant has already undergone half of the sentence. At the same time, it cannot be lost sight of the fact that that prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution of India and in such an eventuality, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act. This has been precisely observed by the Hon’ble Supreme Court in the case of Rabi Prakash Vs. The State of Odisha (Special Leave to Appeal (Cri.) No(s).4169 of 2023).

10. The le