IMPORTANT POINT
The court established that personal liberty and the right to a speedy trial can override statutory restrictions on bail under the NDPS Act when evidence is insufficient.

ORDER :

Farjand Ali, J.

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

2. 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. 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.

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

4. I have heard and considered the submissions made by both the parties and have perused the material available on record.

5. Brief facts of the case are that two vehicles (Mahendra Jeep bearing registration No.RJ05 C 0157 & Swift Desire Car No.RJ31 CA7172) were intercepted by the police and 7 bags weighing 140 Kg and 80 Kg contraband poppy husk came to be recovered from both the vehicles and therefore, two separate cases were registered. One case is lodged for recovery of 80 Kg poppy husk and the other is for 140 Kg poppy husk. Some of the accused are here for charge of having possession of the contraband (Deendayal @ Deenu) and some (Vikas and Imran) were made accused for hatching conspiracy with the principal accused. All are detained and facing trial and further more time shall be consumed in culmination of the trial.

6. For the accused (Deendayal) who is in custody in relation to having possession of the contraband, it is argued that there is a blatant violation of Section 52 A of the NDPS Act; the Standing Order No.1/1988 issued by the Central Government as well as the non-compliance of the NDPS Rules regarding search, seizure and sample. The prolonged incarceration of the petitioners is the prime argument. For the petitioners who are accused for committing ofence under Section 29 of the NDPS Act, arguments have been raised with regard to non-availability of direct or indirect evidence to show their connectivity either with the accused or with the recovered contraband. 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/them cannot be permitted to be flouted. When there comes an issue 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 the trial is prologned by the prosecution for one or the other reason; the personal liberty of an individual can not be encroached upon by keeping him/them behind the bars for an indefinite period.

7. There is a force in the defence plea that neither mandatory provisions have been complied with nor any sample was taken in accordance with the mandate contained under Section 52A of the NDPS Act. It is further observed that pending trial, an accused cannot be kept behind the bars for an unreasonable period.

8. While keeping an accused detained, the opportunity to the prosecutor to lead evidence can only be given for a reasonable period. The wider connotat