Custody duration and lack of trial progress can lead to bail grant despite statutory restrictions under the NDPS Act.

ORDER :

Mr. Kuldeep Mathur, J. - This application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with FIR No.257/2019 registered at Police Station Hanumangarh Sadar, District Hanumangarh, for the offences under Sections 8 /21 and 22 of the NDPS Act.

2. As per the prosecution, during routine patrolling, police team of Police Station Sadar, Hanumangarh, on 30.08.2019 at about 11.10 pm., recovered 50100 tablets of Alprafresh containing Alprazolam weighing 6.146 Kgs. from conscious possession of the present petitioner and one Mukesh Kumar. The petitioner and co-accused were arrested on the spot.

3. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in this case. Learned counsel submitted that the petitioner is in judicial custody since 30.08.2019. He further submitted that out of total 11 cited prosecution witnesses, only 6 prosecution witnesses have been examined before competent Criminal Court. He further submitted that the delay in trial is not at all attributable to the petitioner. He submitted that the petitioner is in judicial custody for more than 4 years and 2 months and looking to the pace at which trial is being conducted against the present petitioner, the same is not likely to be concluded in near future.

4. In support of his contentions, learned counsel placed reliance on the order dated 13.07.2023 passed by Hon'ble the Supreme Court in the case of Rabi Prakash v. 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. Learned counsel further submitted that co-accused Mukesh Kumar (S.B. Cr. Misc. Bail Application No.4631/2023) has already been enlarged on bail by this Court vide order dated 12.09.2023 and the case of the present petitioner is not distinguishable from that of co-accused Mukesh Kumar.

6. Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that petitioner is facing trial for the offences under the NDPS Act and, therefore, the present bail application deserves to be rejected straightway. Learned Public Prosecutor, however, was not in position to refute the fact that in last 4 years and 2 months, out of total 11 prosecution witnesses, only 6 witnesses have been examined till date.

7. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the material available on record.

8. Hon'ble the Supreme Court in the case of Union of India v. K.A. Najeeb reported in (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 tha