The main legal point established in the judgment is that prolonged incarceration and delay in trial can be considered for granting bail under the NDPS Act, as per the directions of the Hon'ble Supreme Court.

JUDGMENT

Swarana Kanta Sharma, J.

1. By way of present application under Section 439 of Code of Criminal Procedure ('Cr.P.C.'), the applicant seeks regular bail in case FIR bearing no. 118/2016, registered at Police Station Crime Branch under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act').

2. The case of prosecution, in brief, is that a secret information was received on 10.07.2016, whereby ASI Sudhir Kumar, Narcotics Cell, Crime Branch was informed that one Nigerian national namely James was involved in the supply of cocaine in Delhi and that on the said date, he would be coming in front of Civic Centre near Ramleela ground, Delhi between 12:00 PM to 12:30 PM to deliver a consignment of Heroin to someone. This information was shared with concerned Inspector, Narcotics Cell who further verified the facts from informer and informed the same to ACP, Narcotics Cell, and the said information was also reduced to writing vide DD No. 05 dated 10.07.2016. Thereafter, a trap was laid at Jawahar Lal Nehru Marg bus stand, near Ramleela ground, Delhi and the applicant was apprehended at the instance of secret informer. After apprehension, the petitioner was informed about his legal rights and notice under Section 50 NDPS Act was served upon him. Upon conducting the formal search, one maroon colour carry bag was recovered from the right hand of petitioner, and on checking the same, one transparent polythene containing white colour powder was recovered. Upon further checking, the same was found to be contraband 'cocaine. weighing around 310 grams. Further as per prosecution, the recovered contraband was seized after taking out samples and the case property was sent to Police Station Crime Branch and further formalities under Section 55 NDPS Act were completed. The seized sample was sent to Forensic Science Laboratory, and after completion of investigation, chargesheet under Section 21 NDPS Act and Section 14 Foreigner Act was filed in the concerned Court against the petitioner.

3. Learned counsel for accused/applicant submits that applicant was arrested on 10.07.2016 and has been in judicial custody for almost 6 years and 7 months. It is stated that applicant has been charged with offence punishable under Section 21 NDPS Act, minimum punishment for which is imprisonment for 10 years and fine of Rs. 1 lakh. It is argued that in view of the decision of Hon'ble Apex Court in Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51 and Supreme Court Legal Aid Committee (Representing undertrial prisoners) v. Union of India (1994) 6 SCC 731, the applicant is entitled to bail on the ground that he has remained in jail as undertrial for more than half of minimum punishment applicable in present case. Reliance has also been placed on several judgments of Co-ordinate benches of this Court. Learned counsel further states that present applicant is a foreigner and has been falsely implicated in the instant case.

4. Learned APP for the State, on the other hand, opposes the present bail application and submits that the charges against applicant are serious in nature. It is stated that applicant is a resident of Nigeria and there is a strong possibility that he may abscond, if released on bail. It is, however, stated that since only a few formal witnesses are yet to be examined before the learned Trial Court, this Court may order expedition of trial.

5. I have heard the arguments advanced by both the sides and perused the material on record.

6. The allegations against the applicant are that he was involved in the supply of cocaine in Delhi, and recovery of 310 grams of cocaine was made from the applicant which is a commercial quantity. In such a case, the grant of bail will be subject to the rigours of Section 37 of NDPS Act. The law regarding Section 37, as discussed by Hon'ble Apex Court in Narcotics Control Bureau v. Mohit Aggarwal 2022 SCC Online SC 891, is reproduced as under:

"...10. The provisions