Prolonged incarceration and delays in trial can justify bail under Section 439 Cr.P.C., emphasizing the right to a speedy trial under Article 21.

ORDER :

Mr. Kuldeep Mathur, J. - These second applications for bail under Section 439 Cr.P.C. have been filed by the petitioners who have been arrested in connection with FIR No.VII(IO)08/NCB/JZU/2020 registered at NCB, Jodhpur, for offences under Sections 8/18, 25 and 29 of the NDPS Act.

2. As per the prosecution, team of NCB, Jodhpur, on 12.03.2020, recovered contraband (opium) greater than commercial quantity from conscious possession of the present petitioners. They were arrested on the spot.

3. Learned counsel submitted that the petitioners are in custody since 12.03.2020. It was also submitted that trial against the petitioners has commenced but in last more than 3 years and 10 months, out of the total 11 cited prosecution witnesses, only 5 witnesses have been examined till date. Learned counsel submitted that the delay in trial before the competent criminal court is not at all attributable to the present petitioners.

4. Learned counsel thus submitted that in view of the fact that the petitioners are in custody for last more than 3 years and 10 months and the delay in trial is not attributable to them, they deserve to be enlarged on bail.

5. 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."

6. Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that petitioners are facing trial for the offences under the NDPS Act and, therefore, the present bail applications deserve to be rejected straightway. Learned Public Prosecutor, however, was not in position to refute the fact that in last 3 years and 10 months, out of total 11 cited prosecution witnesses, only 5 witnesses have been examined till date.

7. Heard learned counsel for the petitioners 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 that the presence of statutory restrictions like Section 43D(5) of the UAPA per see does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part - III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigors of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D(5) of the UAP