IMPORTANT POINT
The court considered the prolonged custody of the petitioner and the exceptions within Section 37 of the NDPS Act to grant bail.

ORDER :

1. This is the second bail application under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. 02/2020, Police Station NCB Jodhpur, District Jodhpur for the offence under Sections 8/18, 25 & 29 of NDPS Act.

2. The first bail application of the petitioner was dismissed by this Court vide order dated 07.03.2022 as not pressed.

3. Learned counsel for the petitioner submits that the petitioner is innocent and he has falsely been implicated in this case. Counsel submits that the trial is pending for last more than four years and till date, only five prosecution witnesses have been examined out of total 12 witnesses. Counsel submits that some witnesses did not turn up for their evidence despite issuance of summon.

4. In support of his contentions, learned counsel placed reliance on the recent order dated 13.07.2023 passed by Hon’ble the Supreme Court in the case of Rabi Prakash vs. State of Odisha in Special Leave to Appeal (Crl.) No. 4169/2023, wherein Hon’ble the Supreme Court held as under:

“3. We are informed that the trial has commenced but only 1 out of the 19 witnesses has been examined. The conclusion of trial will, thus, take some more time.

4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent-State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b) (ii) of the NDPS Act.”

5. Hon’ble the Supreme Court in the case of Union of India vs. K.A. Najeeb, (2021) 3 SCC 713, while dealing with the cases where fetters are placed on Court’s power to grant bail and the trial has not been completed within a reasonable time, observed as under:

“17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part-III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

6. A coordinate Bench of this Court in the case of Umesh Vyas vs. State of Rajasthan (S.B. Criminal Misc. II Bail Application No. 14958/2022), vide order dated 17.03.2023, also observed as follows:

“The Hon’ble Supreme Court in the cases of Abdul Majeed Lone vs. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl.) No. 3961/2022, Amit Singh Moni vs. State of Himachal Pradesh, Criminal Appeal No. 668/2020, Tapan Das vs. Union of India, Special Leave to Appeal (Criminal) No. 5617/2021, Kulwant Singh vs. State of Punjab, Special Leave to Appeal (Criminal) No. 5187/2019, Ghanshyam Sharma vs. State of Rajasthan, Special Leave to Appeal (Criminal) No. 5397/2019, Nadeem vs. State of U.P. Special Leave to Appeal (Criminal) No. 1524/2022 and Mukesh vs. State of Rajasthan, Special Leave to Appeal (Criminal) No. 4089/2021 has granted bail to the accused pe