IMPORTANT POINT
The court emphasized the fundamental right to a speedy trial over statutory restrictions on bail, allowing bail due to prolonged incarceration without trial.

ORDER :

(Farjand Ali, J.)

1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his 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-petitioner and he has been made an accused based on conjectures and surmises. Learned counsel for the petitioner further submits that the co-accused Bhagirath (Bail Application No.10845/2024) has already been enlarged on bail by this Court vide order dated 09.10.2024. He further submits that case of the petitioner is not distinguishable with that of the case of the co-accused Bhagirath who has already been enlarged on bail.

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

4. I have considered the submissions made by both the parties and have perused the material available on record. Co-accused Bhagirath (Bail Application No.10845/2024) has already been enlarged on bail by this Court vide order dated 09.10.2024.

The relevant portion is reproduced below:-

“8. Prima facie, it appears that the petitioner is neither the owner of the place from where the recovery was made, nor have any dominion over the recovered contraband rather, it seems that he was merely performing the role of a labourer. The petitioner is aged about 66 years and he was arrested on 19.05.2022 and since then he is in judicial custody. Two and half years have been elapsed. Thus, this Court feel persuaded to hear the bail application on merits.

9. For the principal accused Satpal, who is in custody and said to have ownership of the place from where the recovery was made, 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 petitioner is the prime argument. 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 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 behind the bars for an indefinite period.

10. 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.

11. While keeping an accused detained, the opportunity to the prosecutor to lead evidence can only be given for a reasonable period. The wider connotation of the phrase 'reasonable period' be understood to be one year because the case is classified as a sessions case which would mean that the like cases should commence and conclud