IMPORTANT POINT
The court established that fundamental rights can take precedence over statutory restrictions on bail in cases of procedural non-compliance.

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-petitioner. The requisite details of the matter are tabulated herein below:

2. The concise facts of the case as alleged in the FIR are that the petitioner came to be arrested in this case on 29.05.2021 and certain medicinal drug viz., 54 boxes containing 27000 tablets of NRx Tramadol Hydrochloride Tablets 100 mg Calviidol-100 SR Tablets (9 Kg 180 grams) were recovered from his possession.

3. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. He submits that the contraband was recovered on 29.05.2021 and he has been behind bars since a very long period and the trial is progressing at a very slow pace. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioner and he has 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. Perusal of the record revealing that on 29.05.2021, Vikram Singh Charan, SHO PS Naal District Bikaner on receiving a secret information during nakabandi he alongwith a team intercepted a Vehicle bearing registration No.GJ05 JK3274. Upon interrogation, the driver of the vehicle disclosed his name as Gopilal and the person sitting behind the driver seat stated his name as Suresh. When search was made, 54 boxes containing 27000 tablets of NRx Tramadol Hydrochloride Tablets 100 mg Calviidol-100 SR Tablets (9 Kg 180 grams) were recovered. The petitioner was arrested and since then he is in custody. Till date, out of 12 witnesses only statements of two Prosecution Witnesses i.e. complainant and Seizing Officer have been recorded in the trial. It is further noticed that except the present one, no other case has been registered against the accused. 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 him 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 can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial.

7. Perusal of the statement of P.W. 2 Vikram Singh revealing that the samples sent to the FSL for detection of contraband were neither taken nor marked in the presence of Magistrate. Not making inventory in accordance with the guidelines issued by the Government vide Standings Order Nos.1/1988 & 1/1989 as well as the mandate of law contained under Section 52-A of the NDPS Act is a serious question which if decided in favour of the accused, then his conviction cannot be made. When there appears reasonable ground to presume that certain infirmity or legal defect would be fatal to the prosecution still not exercising power of granting bail would mean not honoring the guarantee of the Constitution given to every individual regarding protection of his liberty.

8. In this view