Prolonged incarceration and incomplete trial justify granting bail under the Narcotic Drugs Act, subject to conditions.

ORDER :

M. R. MENGDEY, J.

1. The applicant has filed this Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( BNSS ) for enlarging the applicant on Regular Bail in connection with FIR being C.R. No.III/37/2017 registered with Puna Police Station, District:Surat City for the offences punishable under Sections 8(C), 20(B) and 29 of the Narcotic Drugs and Psychotropic Substances Act .

2. Rule. Learned APP waives service of Rule on behalf of the Respondent State.

3. Heard learned advocate Mr.Kishan Daiya appearing for the applicant and learned APP Mr.Dhawan Jaiswal for the Respondent – State.

4. Learned advocate for the applicant submitted that the investigation of the offence is over and charge-sheet has been filed. He submitted that the applicant has been arrested in connection with the present offence on 23.3.2017 and since then the applicant is in custody. The present applicant has undergone incarceration of half the period which has been prescribed as a sentence for the offence with which the applicant is charged. Section 479 of BNSS entitles the present applicant being enlarged on bail having regard to the fact that the applicant has already undergone more than half the sentence prescribed for the offence in question. He, therefore, submitted to allow the present application and enlarge the present applicant on bail subject to suitable conditions.

5. The application is opposed by learned APP contending that this is a successive application filed by the applicant seeking regular bail and there has been no change in circumstances, therefore the present application is not maintainable. He further submitted that as per the case of prosecution, the applicant was found in conscious possession of contraband substance of Ganja worth 63 kilograms, which is a commercial quantity and therefore, the rigours of Section 37 of the NDPS Act would come into play. He therefore submitted to dismiss the present application.

6. This Court has considered the submissions canvassed by learned advocates for the parties and has also perused the material placed on record. It is an admitted position that the applicant has been arrested in connection with the present offence on 23.3.2017. Thus, the applicant has undergone incarceration for a period of almost eight years. The Co-ordinate Bench of this court had called for the report from the concerned court as regards the current status of trial of the offence in question. Accordingly, the concerned trial court has submitted its report to the said aspect. The report indicates that out of 20 witnesses cited by the prosecution in the charge-sheet, as many as 7 witnesses have been examined by now and summons are issued to the remaining witnesses for their examination. Having regard to the fact that the applicant has undergone incarceration for almost eight years and the trial of the offence is not yet over, the application deserves consideration.

7. This court has considered the following aspects:

(a) As per catena of decisions of Hon’ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused.

(b) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.

(c) That the Applicant is in judicial custody.

(d) The law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40 .

8. Having heard the learned Advocates for the parties and perusing the record produced in this case as well as taking into consideration the facts of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused