IMPORTANT POINT
Prolonged incarceration exceeding five years may justify bail under Section 439 Cr.P.C. despite statutory restrictions.

ORDER :

1. This Court perused the material available on record.

2. The petitioner has been arrested in connection with FIR No.204/2019 of Police Station Rajiyasar, District Sri Ganganagar for the offences punishable under Sections 8/15, 25, 29 of NDPS Act. He has preferred this fifth bail application under Section 439 Cr.P.C.

3. Mr. Kaushal Gautam, learned counsel appearing on behalf of the petitioner submits that the incident occurred on 17.10.2019 at about 7:20 PM when the petitioner was caught red-handed with the contraband, specifically 88.2 kg of Poppy Husk.

3.1 Learned counsel further submits that the statements of witnesses namely PW-1 Bhawani Singh, PW-2 Jai Kumar, PW-3 Suresh Kumar, PW-4 Bhoop Singh, PW-5 Hansraj, PW-6 Vinod Kumar S/o Sahab Ram, PW-7 Durgadutt, PW-8 Sandeep Kumar, PW-9 Vinod Kumar S/o Mahaveer Prasad, PW-10 Bablu, PW-11 Rajendra Prasad & PW-12 Bhanwar Lal have been recorded, but still the trial is likely to take long time.

3.2 Learned counsel also submits that the petitioner has already been in custody for more than five years, as evident from the custody report submitted by the learned Public Prosecutor, indicates an actual custody of 05 years, 01 month and 15 days as of 18.12.2024.

3.3 Learned counsel further submits that ordinarily this Court considers bail application during trial, if the custody goes above five years and if the trial is likely to be more prolonged.

4. Learned Public Prosecutor though opposes the bail application, but is unable to refute the aforesaid factual matrix.

5. At the outset, this Court considers it just and proper to reproduce the relevant portions of the judgment rendered in Rabi Prakash vs. The State of Odisha (Special Leave to Appeal (Crl.) No.4169/2023) rendered by Hon'ble Apex Court on 13.07.2023; Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713 and; Umesh Vyas vs. State of Rajasthan (S.B. Criminal Misc. II Bail Application No.14958/2022), decided by a Coordinate Bench of this Hon’ble Court on 17.03.2023, as hereunder:-

Rabi Prakash (supra):

“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.”

Union of India Vs. K.A. Najeeb (supra):-

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

Umesh Vyas (supra):-

“The Hon’ble Supreme Court in the cases of Abdul Majeed Lone Vs.