IMPORTANT POINT
Prolonged incarceration without trial can lead to the violation of the fundamental right to liberty, allowing for the possibility of bail despite statutory restrictions under the NDPS Act.

JUDGMENT/ORDER

1. Heard learned counsel for the applicant and the learned Additional Public Prosecutor for the Respondent State.

2. This is an application for bail. The offence alleged against the applicant is under Ss. 21(C), 22(C) and 20(b)(ii)(B) of the NDPS Act. The offence is registered against the applicant under Crime No.27/2019 at the Anti-Narcotic Cell, Panaji.

3. The application for bail is opposed by learned Additional Public Prosecutor, Shri Pravin Faldessai. Shri Faldessai submitted that the applicant was found in possession of not only variable but commercial quantities of different drugs/substances in the nature of cocaine, MDMA, and charas.

4. In the course of a raid conducted on 30/12/2019, the applicant, a Portuguese national, came to be arrested where the following drugs/substances were found on his person:

(a) 110.820gms cocaine (variable quantity);

(b) 101.108gms MDMA (commercial quantity;

(b) 240gms charas (variable quantity).

5. Learned counsel for the applicant relied on the decision of the Hon'ble Supreme Court in the case of Rabi Prakash v/s. The State of Odisha in Special Leave to Appeal (Crl.) No.4169/2023 dtd. 13/7/2023 where their Lordships held as under:-

'4. As regard to the twin conditions contained in Sec. 37 of the NDPS Act, learned counsel for the respondentState has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Sec. 27(1)(b)(ii) of the NDPS Act.'

6. Learned counsel for the applicant submits that in the present case, the applicant is in custody for more than three and a half years.

7. No doubt the application for bail is vehemently opposed by the learned Additional Public Prosecutor. The material on record indicates that though it was initially reported what was found on the person of the applicant was cocaine, but later, at the time of reweighing before the learned trial Court, it was indicated that the substance is not cocaine but ketamine and even the weight was 15 gms short. It is then submitted by learned counsel for the applicant that at the time of re-weighing before the trial Court, charas to the extent of 86.5gms was found less than the quantity which was allegedly seized from the applicant. There are some discrepancies which should enure to the benefit of the applicant for the purpose of bail. The trial will be decided on its own merits.

8. The applicant, admittedly, is in custody for three and a half years. Though the charge-sheet has been filed, not a single witness has been examined so far. The trial is likely to take a long time to conclude. Following the dictum of the Hon'ble Supreme Court in the case of Rabi Prakash v/s. State of Odisha (supra), I am inclined to release the applicant on bail as prolonged incarceration in the facts of the present case would militate the most precious fundamental right guaranteed under Article 21 of the Constitution of India and, in such a situation, as observed by their Lordships, the conditional liberty must override the statutory embargo created under Sec. 37(1)(b)(ii) of the NDPS Act.'

9. There are no criminal antecedents recorded against the applicant and, therefore, there is no possibility of the applicant committing offence of a similar nature. The applicant can be released on bail. The applicant, being a Portuguese national, stringent conditions need to be imposed following the dictum of this Court in Criminal Application (Bail) No.349 of 2021 in the case of Obineri Udoka Anthony v/s. The State of Goa, Thr. I.O. Pernem Police Station, Pernem &