Provisional liberty can override statutory restrictions on bail under the NDPS Act when trial delays are evident, emphasizing the fundamental right to personal liberty.

Order :

1. The jurisdiction of this court has been invoked by way of filing the instant application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. The previous application being S.B. Criminal Misc. Bail Application No.16315/2023 came to be dismissed as not pressed by this Court vide order dated 10.01.2024. Hence, the instant bail application.

3. The case, in brief, revolves around the events of 01.02.2023, SHO, Dangiyawas upon receiving an information intercepted a car bearing registration No.RJ02 CD1488. The said vehicle was being driven by one Anil and the person sitting by his side was Chandra Mohan. Upon search 120 Kg poppy husk came to be recovered. The accused failed to produce any license or permit for possessing or transporting the contraband. Consequently, an FIR No.27/2023 was registered under Section 8/15 of the NDPS Act. After the investigation confirmed the commission of the offence, whereafter chargesheet was filed against the accused, leading to the registration of the case for trial. The prosecution has recorded the statements of some of the witnesses, and the matter is presently set for the prosecution's evidence stage.

4. 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. He further submits that the accused was taken into custody on 01.02.2023 and since then he is behind the bars. Now, more than two years have elapsed but the trial is not going to be culminated and still it seems that a further long time shall be taken in conclusion of the same, thus, he may be enlarged on bail.

5. 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.

6. I have heard and considered the submissions made by both the parties and perused the challan papers and the other material available on record.

7. Though the first bail application of the petitioner was rejected by this Court vide order dated 10.01.2024 passed in SBCRLMB No.16315/2023 but the petitioner has filed instant third bail application because out of total 13 witnesses, 2 witnesses have been examined in the trial till date. Perusal of the record revealing that the petitioner is behind the bar in this case for more than two years. At the time of search and seizure 120 KG poppy husk came to be recovered from the alleged vehicle which was being driven by the petitioner. A further perusal of record revealing that the samples were taken at the spot, they were marked and sent to the FSL for detection of contraband. The plea with regard to total non-compliance of Section 52-A of the NDPS Act as well as the NDPS (Seizure, Storage, Sampling & Disposal) Rules 2022 made thereunder has been raised and thus argued that the recovery vitiates on this count alone since the chemical examiner report will not be sufficient to prove recovery of contraband from the possession of the petitioner and prima facie, this Court feels that the plea has a substance and is appreciable but since the trial is still pending, therefore, I wouldn’t like to give definite and final opinion in this regard as the same may influence the course of trial, however, keeping the above in mind, I feel that the embargo contained under Section 37 of the NDPS Act will not come in the way of granting bail to the petitioner.

8. In Rabi Prakash Vs. State of Odisha p