Prolonged incarceration and delay in trial proceedings can be grounds for granting bail, and non-appearance of essential witnesses before the trial court may not be a reasonable excuse.

JUDGMENT

Vinit Kumar Mathur, J. - The present second bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner who is in custody in connection with F.I.R. No.09/2017 Police Station CBN Nimach for the offences under Sections 8/15, 25, 29 of NDPS Act.

2. Heard learned counsel for the petitioner as well as learned Public Prosecutor and also perused the material available on record.

3. After the rejection of the first bail application on 23.04.2021, statement of two prosecution witnesses were recorded before the learned trial court. Learned counsel for the petitioner submits that the petitioner is facing incarceration for more than five years and statements of only two prosecution witnesses have been recorded. He further submits that after the arrest of the other co-accused persons in the present case, the trial has been started de novo. He submits that the prosecution witnesses who have already been examined will be re-summoned in the present case. He submits that the trial is not likely to be concluded in the near future as there are more than sixteen prosecution witnesses whose testimony will be recorded before the trial court. Learned counsel for the petitioner submits that as per the order-sheets produced before this Court, it is more than clear that they have not taken any adjournment before the trial court.

4. Learned counsel further submits that recently the Hon’ble Supreme Court in the case of Rahul Vs. State of Rajasthan decided on 01.11.2022 has granted bail to the petitioner on the ground that the petitioner was in custody for more than 4 years and trial was not likely to be concluded in near future. Even in that case also, the contraband recovered was more than the commercial quantity.

5. Learned counsel further submits that the petitioner has already suffered the incarceration for more than five years. The counsel for the petitioner relies upon a judgment of three Judges bench of Hon’ble Supreme Court rendered in the case of Union of India V/s K.A. Najeeb 2021 (3) SCC 713. Learned counsel further submits that casual approach of the police officials in not appearing before the trial court for their examination is hampering the trial proceedings resulting into delay in deciding the case of the petitioner for which he had to suffer the incarceration. The counsel relies upon the judgment of Hon’ble Supreme Court in the case of Tapan Das Vs. Union of India decided on 07.10.2021 and order of coordinate bench of this court passed in S.B.Criminal Second Bail Application No.2392/2019 Oma Ram @ Om Prakash V/s State decided on 06.05.2019 and the observations made by this court in S.B. Criminal Misc. 3rd Bail Application No.15198/2021 Manjeet Singh V/s State of Rajasthan decided on 07.12.2021. Therefore, it isprayed that the petitioner may be enlarged on bail.

6. Learned Special Public Prosecutor has filed reply to the present bail application and submits that huge quantity of contraband has been recovered in the present case and merely because the petitioner has suffered incarceration for more than five years should not be a ground for enlargement on bail by this court. He submits that the Hon’ble Supreme Court in the case of Narcotics Control Bureau Vs. Mohit Aggarwal has categorically held that since the petitioner was involved in the recovery of huge quantity of contraband, therefore, he cannot be let out on the length of his custody period. He submits that the petitioner should not be given benefit of enlargement on bail on the ground of the period spent by him in jail during the pendency of trial.

7. I have considered the submissions made at the bar and gone through the relevant documents of the case. The petitioner is facing the trial for an offence under NDPS Act and has suffered the incarceration for more than five years. It is a fact that learned trial court has summoned the witnesses from time to time for their examination before the trial court. It is worth noticing here that mostly the summoned