ORDER :

1. In view of the sudden resurgence of Covid-19 infection, there is limited functioning of the High Court and, therefore, the matter has been listed today for consideration through virtual mode.

2. Heard learned counsel for the petitioner and learned counsel for the State.

3. The petitioner seeks bail in Dumaria Ghat PS Case No. 81 of 2014, NDPS Case No. 49 of 2014, instituted for the offence under Sections 414/34 of the Indian Penal Code and 20/22/23 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS Act").

4. Learned counsel for the petitioner is expected to honour his undertaking given in the instant case for depositing the requisite court fee and to remove the defects as pointed out by office when called upon to do so by the office.

5. Twice, the petitioner's prayer for bail has been rejected; once under order date 05.02.2016 passed in Cr. Misc. No. 49648 of 2015, thereafter, on 22.06.2020 in Cr. Misc. No. 85402 of 2019.

6. The prosecution case is that the Station House Officer (for brevity 'SHO') on 29.07.2014 was on duty and received confidential information regarding smuggling of contraband 'Charas' from Nepal. He laid a trap. Seeing the police party, four persons carrying basket in their hand and two persons on motorcycle fled away. They were apprehended after a chase. Altogether 45 kg 'Charas' was recovered. From the petitioner's possession 11.5 kg 'Charas' has been recovered. The quantity allegedly recovered, is much more than commercial quantity.

7. The learned counsel for the petitioner denies and disputes the allegations. He submits that the mandatory procedure for search seizure prescribed under the NDPS Act has not been complied with. The petitioner has now remained in custody since 29.07.2014, for nearly seven years. It is his submissions that continued incarceration of the petitioner due to failure of the prosecution in concluding the trial offends section 309 of the Code of Criminal Procedure as well as Articles 14, 19 and 21 of the Constitution of India. Having regard to the fact that this is his first offence, and that he is in custody for nearly seven years, this Court should allow the prayer for bail.

8. In support of his submissions, he has relied upon the decision of the Apex Court in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners vs. Union of India and Another reported in (1994)6 SCC 731.

9. The further submission is that on the last occasion when the petitioner's prayer for bail was rejected on 22.06.2020, this Court had expressed an expectation that the learned Trial Court would conclude the trial within a period of two months after resumption of the physical Court. Physical Court proceedings thereafter resumed and continued for considerable time. Only recently, about a month back the physical functioning has again been limited having regard to the resurgence of Covid-19 pandemic. Still the trial has not been concluded and the petitioner continues to be in custody.

10. The learned APP, representing the State, referring to Section 37 of the NDPS Act has appeared and submitted that unless this Court comes to a finding for the purposes of grant of bail that offence is not made out, the petitioner would not be entitled to the privilege of bail. He, however, does not dispute the legal submissions of the petitioner's counsel based on judgment of the Apex Court. Judgments of the Apex court in the case of Supreme Court Legal Aid Committee (Supra) relied upon by the petitioner has considered the issue regarding grant of bail to under trials facing prosecution under NDPS Act, keeping in background, the statutory bar on grant of bail in section 37.

11. The Apex Court considered the mandate and requirement of speedy trial in terms of Section 36 of the NDPS Act, Section 309 of the Code of Criminal Procedure and the Constitutional guarantee to fundamental rights under Articles 14, 19 and 21 of the Constitution of India. In light of these statutory and Const