An accused person charged with an offense punishable with imprisonment for five years or more under the NDPS Act is not entitled to bail unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail.

1. :- Petitioner-Daud Ali has filed this second application for his bail Under Section 439, Cr.P.C. The earlier one was rejected by this Court on August 10, 1993. The earlier bail application was decided on merits of the case. The accusation against the accused-petitioner is that he was found in possession of 25 gms. of smack, on the search of his body, on May 15, 1993.

2. It is urged by the learned Counsel that the petitioner was falsely implicated, as he was having inimical relations with Deputy Superintendent of Police (Dy. S.P.) Shri Surendra Nath. Learned Counsel further contended that after his arrest, telegrams were sent to the Higher Authorities, stating therein that the petitioner was falsely implicated in the case. Then, it was contended that the report of chemical examination of the sample from Forensic Science Laboratory (for short, 'FSL`) has not been received so far and the trial is likely to be delayed.

3. I have given my anxious consideration to the above submissions, Section 37(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, 'NDPS Act') provides that no persons accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail on his own bond unless:-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; & (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

4. As per prosecution case, the Dy. S.P. Bhawani-Mandi, on getting information that the petitioner was selling smack, went to the spot and found him there. On his search, 25 gms. of smack was recovered from his possession. At this stage, it cannot to said that there are reasonable grounds for believing that the petitioner is not guilty of the offence, for which he has been arrested and simply because some telegrams were given to the higher authorities, after his arrest, no inference can be drawn that he was innocent. After registration of the case, the police investigated the matter and has filed a charge-sheet.

5. Another limb of the argument relates to the delay in the trial. It is true that the accused, who is in jail, has a right to have expeditious trial and, now it is a settled proposition of law that this right is a fundamental one. In a given case, if the detention of the accused is found unreasonable and violative of Article 21 of the Constitution, he can be released on bail. A Division Bench of this Court has taken the view that this rule applies, even in NDPS cases. But, the question is whether the detention of the petitioner, in the instant case, is to that extent that it violates Article 21 of the Constitution. I am of the considered opinion that it is not so. The petitioner was arrested on May 15, 1993 and he is involved in a serious case. For the petitioner's complaint of not receiving FSL report, it may be stated that in S.B. Criminal Misc. Bail Application No. 4591/93, on the direction of this Court, Dr. B.D. Mishra, Additional Director (Chemical), Forensic Science Laboratory, intimated this Court that, in special circumstances, the samples can be examined on priority basis, out of turn, provided the Department is intimated by the District Superintendent of Police or the concerned Court, giving special circumstances, which required examination of the sample, on priority basis. Dr. Mishra also stated that in cases, where the accused are in jail, on getting information/request from the S.P. or the Court concerned, the Department would examine the sample/s out of turn and make the report available within a specified time.) He also brought to my notice that in the normal course, the FSL report cannot be available on an early date, as the samples are examined as per their turn and it takes about 12 months, when the turn comes, due to h