The right to speedy trial under Article 21 can override stringent bail conditions in the NDPS Act, especially when an accused has faced prolonged incarceration without trial.

JUDGMENT :

1. This Application is filed under Section 439 of the Code of Criminal Procedure, 1973 for seeking regular bail in C.R. No.12 of 2023 registered with Anti Narcotic Cell, Ghatkopar Unit, Mumbai for offences under Sections 8(c), r/w 22(C) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”).

2. The brief facts of the case are that on 05.02.2023, a Police team led by Police Inspector Lata Suthar, acting on orders from superiors, proceeded in a government vehicle for conducting raids against persons dealing with Narcotic substances. It is when the team reached under the Dockyard Railway Station bridge at about 8:30 p.m. they noticed Applicant – Accused behaving suspiciously.

3. On noticing the Police Officials Applicant attempted to flee but was detained on the spot. On questioning about his details Applicant gave evasive answers which led the police to call for panch witnesses in order to search the Applicant. On search, 220 grams of Mephedrone (for short “MD”), a psychotropic substance/contraband was found was found in possession of Applicant and he was arrested. Small quantity under the NDPS Act is 2 grams and commercial quantity is 50 grams.

4. Mr. Mundargi, learned Senior Advocate for the Applicant- Accused, at the outset disputes the Prosecution narrative. He would submit that there is serious non-compliance of procedure in the fact that after seizure of the contraband it ought to have been sent immediately for forensic without delay but in this case there is an unexplained delay of 15 days and further there is a dichotomy in the colour of the packets of the samples which were drawn and those sent to the Magistrate. He would submit that the scope of his submissions before me would not be limited to the aspect of non-compliance but also and more importantly on the ground of long incarceration of Applicant – Accused being in prison without trial proceeding in the matter. He would submit that Applicant-Accused aged 22 years and having no prior antecedents and he has been in custody for a period of 1 year and 11 months. He would submit that keeping him in custody for further indefinite period would be detrimental to his future as there is no hope of trial being proceeded with in the near foreseeable future. He would submit that the Applicant – Accused used to work as a cobbler prior to being arrested and the nature of his profession makes it incumbent upon him to engage in his work regularly in order to sustain himself and his family. He would thus pray for grant of bail to the Applicant.

4.1. In support of his contentions, he has referred to and relied upon the following decisions and urged the Court to consider them:-

(i) Sukhvinder Singh Bittu Vs. State Punjab, Criminal Appeal No. 1204 of 2024 – decided on 26.02.2024

(ii) Rabi Prakash Vs. The State of Odisha, [2023 SCC OnLine SC 1109] and

(iii) Tinku Vs. State (NCT of Delhi), 2024 SCC OnLine Del 9132

5. PER-CONTRA, Ms. Gajare – Dhumal, learned APP appearing on behalf of Respondent – State would vehemently oppose the present Bail Application. She would submit that recovery of 220 grams of MD i.e. the contraband is above commercial quantity and therefore the bar of Section 37 of the NDPS Act must be overcome by the Applicant. She would submit that the Court while granting bail must be fully satisfied that there are reasonable grounds for believing that Applicant – Accused is not guilty of such offence and that he is not likely to commit any offence while on bail. She would submit that offences such as this are offences against the society at large and there is reasonable apprehension that Applicant who is alleged to have been apprehended with commercial quantity of the contraband may resume indulging in such activities if granted bail. Hence he would submit that the Application be rejected.

6. I have heard Mr. Mundargi, learned Senior Advocate for Applicant and Ms. Gajare – Dhumal, learned APP for Respondent – State and with their able assi