Prolonged incarceration can justify bail despite statutory restrictions under the NDPS Act, emphasizing the right to a speedy trial.

ORDER :

1. The present fourth bail application has been filed under Section on 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. 282/2020 registered at Police Station Anupgarh, District Sriganganagar for the offences punishable under Section 8/22, 25, 29 of the NDPS Act.

2. The third bail application was dismissed as not pressed on 24.11.2023 by this Court.

3. Learned counsel for the petitioner submits that the petitioner is inside the jail since 04.08.2020 and up to this time, out of 12 witnesses, only 3 prosecution witnesses have been examined.

4. In support of his contentions, learned counsel placed reliance on the recent order dated 13.07.2023 passed by Hon'ble the Supreme Court in the case of Rabi Prakash v. The State of Odisha

5. (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. 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 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 provisions like Section 43D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

7. A coordinate Bench of this Court in the case of Umesh Vyas v. State of Rajasthan (S.B. Criminal Misc. II Bail Application No. 14958/2022), vide order dated 17.03.2023, also observed as follows:

“The Hon'ble Supreme Court in the cases of Abdul Majeed Lone v. Union Territory of Jammu and Kashmir [Special Leave to Appeal (Crl.) No. 3961/2022], Amit Singh Moni v. State of Himachal Pradesh (Criminal Appeal No. 668/2020), Tapan Das v. Union of India [Special Leave to Appeal (Criminal) No. 5617/2021], Kulwant Singh v. State of Punjab [Special Leave to Appeal (Criminal) No. 5187/2019], Ghanshyam Sharma v. State of Rajasthan [Special Leave to Appeal (Criminal) No. 5397/2019], Nadeem v. State of UP [Special Leave to Appeal (Criminal) No. 1524/2022] and Mukesh v. The State of Rajasthan [Special Leave to Appeal (Criminal) No. 4089/2021] has granted bail to the accused persons, against whom the allegations are of transporting or possessing narcotic contraband above commercial quantity, on the ground of custody period and taking into