JUDGMENT :

1. This petition has been filed seeking regular bail in Sessions Case No. SC/138/2017, NCB Case No. VIII/18/DZU/2016 under section 20(b)(ii)(C)/23/29 NDPS Act. The petitioner has been in custody since 6th November, 2016 and has been in incarceration for a period of about 6 years 2 months.

2. As per the case of the prosecution, on 4th November, 2016, pursuant to secret information received from IGI Airport, one lady namely Nympha De Jesus, in whose name LOC was opened at the request of NCB, was detained at the departure lounge while she was going from Delhi to Bangkok. The baggage which was checked in her name was opened and one bag was found having suspicious material which later gave positive results for charas and hashish, the total weight of which came out to be 2.7 kg out of which samples were taken. Thereafter, the statement of Nympha was recorded under section 67 NDPS Act wherein she stated that the petitioner herein was her boyfriend and they were living together in Manali and they had come from Manali to New Delhi to go to Bangkok and that the petitioner had booked his luggage on her ticket after getting the boarding pass. Based on her interrogation, the NCB got the petitioner deported from Bangkok to IGI Airport Delhi and he was arrested on 6th November, 2016. Later on 25th March, 2021, the Ld. Trial Court framed charges under the NDPS Act against the petitioner and the co-accused Nympha to which they pleaded not guilty and claimed trial.

3. The learned counsel for the petitioner contended that the petitioner is about 66 years of age and has no previous involvement. Even as per the case of the prosecution, based on the said charge against the petitioner, the minimum imprisonment awarded would be 10 years as per the NDPS Act. However, trial has only recently commenced after 6 years of incarceration and 20 prosecution witnesses are to be examined out of which only 2 witnesses have been examined so far and PW-3 is under examination. Trial, therefore being at initial stage and not likely to be concluded in near future, continued incarceration violates the petitioner’s fundamental right provided under Article 21 of the Constitution of India. It is further contended that the delay in trial is not attributable to the petitioner. It is pointed out that as per order dated 14th December, 2017 of the Ld. Trial Court, it was clear that the petitioner had conceded for settlement of charge against him, however, the matter was adjourned as the SPP of the NCB was busy and could not reply. Further, the petitioner is a British National of Indian origin and is an OIC card holder but has been living in India for a long time and there are no chances of his absconding since his passport is already lying seized with the NCB and even otherwise he has roots in India and is well respected.

4. The critical issue which has been contended by the petitioner is that there was no recovery made from the petitioner but from the co-accused Nympha and only upon her disclosure, was he apprehended.

5. As per the learned counsel for the NCB, the contraband is commercial quantity and was found concealed in the baggage of Ms. Nympha in the personal belongings of the petitioner. As regards the delay in trial, the learned counsel for the NCB has placed the order sheets showing that the trial was delayed due to Covid pandemic and other reasons beyond control. It is further contended that detention simpliciter of more than 5 years cannot give the mechanical right to the petitioner for seeking bail specially when there is a statutory embargo under the NDPS Act. The learned counsel for the NCB has relied upon decisions of the High Court of Calcutta in Ashok Shil @ Arun v. State of West Bengal, CRM (NDPS) No. 248 of 2022 and Sapan Mandal v. Narcotics Control Bureau, CRM No. 7715 of 2021 in support of their submissions.

6. Perusal of the chart of the Ld. Trial Court proceedings filed by the NCB would show that only on 6-7 occasions in about 59 hearings wh