IMPORTANT POINT
The court established that the right to a speedy trial and personal liberty under Article 21 of the Constitution can override the statutory restrictions on bail under the NDPS Act, particularly when procedural compliance is lacking and prolonged detention occurs.

ORDER :

FARJAND ALI, J.

1. The jurisdiction of this court has been invoked by way of filing the instant bail application under Section 439 CrPC at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:

2. The second bail application being S.B. Criminal Misc. Bail Application No.10719/2023 on behalf of petitioners have been dismissed by this Court vide order dated 03.11.2023 but liberty was granted to them to renew their prayer for bail after the statement of Seizing Officer is recorded. Now, the statement of Seizing Officer is recorded. Hence, these ball applications.

3. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. He further stated that Section 52-A of the NDPS is not complied with. Thus, there are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made an accused based on conjectures and surmises.

4. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

5. Have considered the submissions made by both the parties and have perused the material available on record.

6. It is reflecting from the record that on intervening night of 27.10.2021/28.10.2021, during patrolling, Madan Lal, SHO, P.S. Sadar Sri Gangangar and his team intercepted a Motorcycle bearing registration No.RJ13 FS 3338 which was being driven by Anil Kumar and Sunil Kumar was pillion rider. They were carrying a plastic bag. Upon being searched, total 14500 tablets of Tramadol Hydrochloride Tablets 100 Mg TRIO-SR21 and 21350 tablets of Tramadol Prolonged release Corlividol 100 SR weighing 6.5 Kg were recovered from their conscious possession. Seizing Officer took the samples at the spot, marked them and sent the same to the FSL for its chemical examination. The accused were arrested and sent to custody. Till date out of fifteen witnesses only five could have been examined. Of course, there is a fetter under Section 37 of the NDPS Act regarding grant of bail to an accused having illegal possession of commercial quantity of contraband but a fundamental right of speedy trial to them cannot be permitted to be flouted. When there appears conflict between the statutory provision and the fundamental right then this Court is of the view that a protection of fundamental right should be given preference over the statutory bar in granting bail. If other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual cannot encroached upon by keeping him/them behind the bars for an indefinite period of time pending trial.

7. Besides the above, it is an admitted situation that the samples which were taken by the Seizing Officer from the spot on 28.10.2021 were not taken in the presence of the Magistrate and the same were sent to the FSL. Apparently, the guidelines issued by the Government vide Standing Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act have not been complied with. In this view of the matter, it can be said that the samples sent to the FSL and the report of the FSL in this regard is nothing but is a waste paper as propounded in a judgment titled as Mohammed Khalid and another Vs. The State of Telangana passed by Hon’ble the Supreme Court in Criminal Appeal No(S). 1610 Of 2023 dated 01.