ORDER :

Mr. Kuldeep Mathur, J. - This second application for bail under Section 439 Cr.P.C. has been filed by the petitioner who has been arrested in connection with F.I.R. No.152/2019 registered at Police Station Rohat, Distt Pali, for offence under Section 8 /15, 8/25 and 8/29 of the NDPS Act.

2. Learned counsel for the petitioner submitted that the petitioner is in custody since 03.6.2019. The allegation against the petitioner is that he was transporting contraband (Poppy Husk) weighing 151.65 kg. Learned counsel further submitted that the petitioner does not have any criminal antecedent of similar nature. It was further submitted that as per the charge-sheet filed by the investigating agency, as many as 32 prosecution witnesses are to be examined, however, out of which only eight prosecution witnesses have been examined before the trial court till date.

3. 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."

4. 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 1 month, out of total 32 prosecution witnesses, only 8 witnesses have been examined till date.

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

6. 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 43-D(5) of the UAPA per se 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 rigours 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