Prolonged pre-trial detention can justify bail despite statutory restrictions, emphasizing the right to personal liberty and speedy trial.

ORDER

Rekha Borana, J. - The present bail application under Section 439 Cr.P.C. has been filed on behalf of the petitioner for the alleged offences punishable under Sections 8/15 & 8/25 of NDPS Act in connection with FIR No.65/2021 registered at Police Station Nikumbh, District Chittorgarh.

2. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in this case. He submits that the trial is pending for last about three years and till date, only two prosecution witnesses have been examined out of total 19 witnesses. He submits that except the present one, no case under N.D.P.S. Act has been registered against him. However, two cases relating to offences under Indian Penal Code have been registered.

3. In support of his contentions, learned counsel placed reliance on the recent order dated 29.01.2024 passed by Hon'ble the Supreme Court in the case of Mamata Begum @ Bewa @ Beguni @ Mamata Bibi vs. The State of West Bengal (Special Leave to Appeal (Crl.) No.68/2024), wherein Hon'ble the Supreme Court held as under:

'1. The petitioner is charged with offences punishable under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act 1985. She is in custody for a period of two years. Though the trial has progressed, only five witnesses out of ten have been examined as of date.

2. Bearing in mind the above circumstances and conscious as the Court is of the provisions of Section 37, we are of the view that it would be appropriate to grant bail to protect the personal liberty of the petitioner who faces an interminably delayed custodial period. Consequently, we order and direct that the petitioner be released on bail, subject to such terms and conditions as may be imposed by the Special Court under the NDPS Act in connection with Case No 1370 of 2021 dated 26 November 2021 (NDPS Case No 264 of 2021). The petitioner shall, however, cooperate in all respects in the early conclusion of the trial without seeking adjournment.'

4. He also placed reliance on the order dated 13.07.2023 passed by Hon'ble the Supreme Court in the case of Rabi Prakash vs. The State of Odisha (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. He also placed reliance on the order dated 01.08.2022 passed by Hon'ble the Supreme Court in the case of Nitish Adhikary @ Bapan vs. The State of West Bengal (Special Leave to Appeal (Crl.) No.5769/2022), wherein Hon'ble the Supreme Court held as under:

'The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS Act, registered at Police Station Bongaon, West Bengal.

During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the