Prolonged incarceration and lack of independent evidence can justify bail under the NDPS Act, overriding statutory restrictions.

JUDGMENT :

VIKAS MAHAJAN, J.

1. The present petition has been filed under Section 483 of BNSS 2023 read with Section 36A(3) of the NDPS Act, 1985 seeking regular bail in connection with FIR No.0357/2019 under Sections 21(c)/29 NDPS Act registered with P.S. Crime Branch.

2. The case of the prosecution is that on 25.12.2019, a secret information was received by ASI Ashok Kumar at Narcotics Cell, Crime Branch mentioning therein that a person namely Gopal r/o Nangloi, Prem Nagar, Delhi is indulging in the supply of Heroin in Delhi and he would be coming to supply Heroin to unknown person near Railway Phatak Kirari, Nangloi, Delhi between 2:00 PM to 4:00 PM. A raiding team led by ASI Ashok Kumar was constituted and trap was laid at the place of information. At the instance of secret informer, two persons, namely, Kailash @ Gopal and Mohan Gupta (present petitioner) were apprehended. They were found in possession of a scooty bearing registration no.DL-11SX-7693, which co- accused Kailash @ Gopal was driving. Upon search of scooty, 510 grams of heroin was recovered.

3. Mr. Aditya Aggarwal, the learned counsel appearing on behalf of the petitioner submits that the petitioner is in custody for almost 4 years 6 months and only one witness has been examined out of total fifteen witnesses cited by the prosecution.

4. He submits that co-accused Kailash @ Gopal has been granted bail by the learned Sessions Court on 23.01.2024. He submits that the said co- accused was the driver of scooty from which recovery was effected. Further, the said co-accused also had previous involvements in the NDPS cases. Likewise, co-accused Parvinder @ Babbal has also been granted bail by the learned Sessions Court on 22.01.2020 on the pretext that no recovery was effected from him and the incriminating material against him was only CDR connectivity.

5. He submits that the petitioner was granted interim bail vide order dated 04.06.2024 by the learned Sessions Court in the present case FIR, as well as, vide order dated 07.06.2024 by this court in another FIR No.54/2023 under sections 21/25 of NDPS Act and the petitioner did not flout the conditions of interim bail.

6. He further contends that insofar as other cases alleged against the petitioner are concerned, he has already been granted bail in FIR No.22/2019 under Sections 21/25 NDPS Act registered at P.S. Crime Branch, Delhi vide order dated 28.08.2019. However, his bail application in relation to FIR No.54/2023 is stated to be pending.

7. Mr. Aggarwal has relied upon the following decisions of the Hon’ble Supreme Court in (i) Rabi Prakash v. State of Odisha, 2023 SCC OnLine SC 1109, (ii) Dheeraj Kumar Shukla v. State of UP, SLP (Crl.) No. 6690/2022, (iii) Nitish Adhikary v. The state of Bengal, SLP (Crl.) No. 5769/2022 to contend that the accused therein were granted bail in NDPS matters involving commercial quantity contraband regard being had to the long custody and the fact that the trial would take long time.

8. Per contra, the learned APP appearing on behalf of the State has argued on the lines of status report. He points out the other involvements of the present petitioner. He submits that the repeated involvements of the petitioner in NDPS case goes to show that there is a very strong apprehension that if bail is granted, the accused may jump the bail and may commit crime of similar nature.

9. I have heard the learned counsel for the petitioner, as well as, the learned APP for the State and have perused the record.

10. It may be noted that recovery was made in the present case at about 3.50 PM in the broad day light, but no independent witness was joined during such recovery. The reason put forth in the chargesheet is that 4-5 persons were present at the spot out of their curiosity and they were requested to join as witnesses after being apprised about the secret information but they refused to join as witness. Incidentally, the name of such persons have not been mentioned in the chargesheet. Insofar as the absen