Delay in trial may entitle undertrial prisoners to bail, especially when they have served more than half of the minimum sentence, regardless of the rigors of Section 37 of the NDPS Act.

ORDER

1. Both these bail applications are taken up together for disposal by this common order, as the same have been moved by the two accused, in FIR No.79/2015, registered under Sections 20/29 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, a Police Station Crime Branch, Delhi.

2. The allegations against the present applicants/accused are that on 26th May, 2015, secret information was received by ASI Narinder Khatri posted at Narcotic Cell, Crime Branch, at around 5:15 AM that the accused Ranjeet Kumar was a supplier of Ganja, procuring the same from one Rekha and would be coming near Ranjit Singh Flyover, Mir Dard Road, Red Light to supply it to co-accused Sarvan Kumar. A raiding team was constituted and, at 6:40 AM. Sarvan Kumar was found walking from Turkman Gate, Zakir Hussain Red Light side and he stood by the Red Light. After some time, Ranjeet Kumar came in a three wheeler and handed over a weighty white plastic bag to Sarvan Kumar. Before the two of them could leave the spot, they were apprehended. Thereafter, all requisite proceedings were initiated and they were found to be in possession of 21 Kgs. of Ganja. The case was registered and, presently, the trial is pending.

3. Mr. Rakesh Kumar Giri, learned counsel for the applicants, submits that the applicants/accused have been facing trial for the offences under Section 20 read with Section 29 of the NDPS Act for the last more than 7 years, throughout which time, they have remained in judicial custody. Reliance has been placed on the decision of the Supreme Court in Supreme Court Legal Aid Committee representing Undertrial Prisoners Vs. Union of India & Ors., 1994(6) SCC 731 and the decisions of the Co-ordinate Benches of this Court, relying on the said decision of the Supreme Court, being Atul Aggarwal Vs. Directorate of Revenue Intelligence, BAIL APPLN. 2477/2021, order dated 21st December, 2021, Anil Kumar @ Nillu Vs. State, BAIL APPLN. 1724/2021, order dated 21st March, 2022 and Kartik Dangi Vs. State of NCT of Delhi, BAIL APPLN. 2872/2021, order dated 16th December, 2021, to submit that the delay in the trial entitles the applicants to bail. The learned counsel submitted that the minimum sentence prescribed under Section 20 of NDPS Act for allegedly being in possession of commercial quantity of Ganja was 10 years and the applicants had already remained in judicial custody for more than half of the said minimum sentence.

4. Mr. G.M. Farooqui, learned APP for the State, however, opposed the bail applications, contending that the judgments relied upon by the learned counsel for the applicants were not relevant in the present case, as out of 15 witnesses, 12 witnesses have already been examined. Thus, the trial was likely to be completed without further delay. It is submitted that the recovery from the possession of the accused was commercial quantity of 21 Kgs. of Ganja and, therefore, the rigors of Section 37 of the NDPS Act would have to be considered before bail was granted. It is also submitted that the State was considering challenging the decision rendered in Anil Kumar @ Nillu (supra).

5. I have heard the submissions of both sides and have perused the record.

6. It is noticed that on 13th September, 2021, the bail application of Sarvan Kumar was dismissed by a Co-ordinate Bench of this Court (placed on the record as Annexure-C). It is clear from the order that at that point of time, out of 15 prosecution witnesses, only 4 witnesses were examined and whose cross-examination was yet to take place. The latest Statu