Prolonged detention without direct evidence infringes the right to freedom and speedy trial, justifying bail under Section 439 Cr.P.C. and Section 37 NDPS Act.

Order :

1. 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.168/2018 registered at Police Station Raipur, Dist. Pali, for the offences under Sections 8/15 and 25 of NDPS Act.

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

3. Learned counsel for the petitioner submitted that as per the prosecution, on 14.07.2018, SHO P.S. Raipur during nakabandi near Police Station Barr flagged down one truck bearing registration No.RJ-19-GA-6830. The driver of the truck on seeing the police personnels accelerated the speed of the truck, however, when the truck was chased by the police personnels, he fled away from the spot, abandoning the vehicle. The police team of PS Raipur after following the procedure provided under the NDPS Act has recovered contraband (poppy husk/straw) weighing 486.700 kgs. from 34 sacks from the offending vehicle.

4. Learned counsel submitted that after about 4 years of the alleged incident, the Investigating Agency arrested him in the present case when at the time of alleged incident he was in custody at Central Jail Jalpaigudi (West Bengal) in connection with case No.364/2020 dated 09.06.2020.

5. Drawing attention of the Court towards the challan papers, learned counsel submitted that as per the prosecution, the petitioner is registered owner of the offending truck bearing registration No.RJ-19-GA-6830. Further, at the time of the alleged incident, he was in live contact with sim No.8290827359 which was recovered from the offending truck. Learned counsel submitted that as a matter of fact, the offending truck bearing registration No.RJ-19-GA-6830 was already sold by the petitioner on 15.10.20216 to one Jogaram through an agreement to sale and therefore, it is totally wrong to allege that at the time of the alleged incident he was having any control over the offending vehicle. Learned counsel further submitted that no person who was allegedly using sim No.8290827359 recovered from the offending vehicle has been apprehended by the police till date.

6. Lastly, learned counsel submitted that the in the present case apart from the disclosure statements of the petitioner recorded by the Investigating Agency while he was in custody there is no other direct/circumstantial evidence available on record indicating his involvement in commission of the alleged crime. It was contended that the petitioner is in judicial custody; the High Court at Calcutta, Circuit Bench at Jalpaigudi vide order dated 03.03.2023 has already granted bail to the petitioner in connection with criminal case No.364/2020 and the trial of the case will take sufficiently long time, therefore, the benefit of bail may be granted to the accused-petitioner.

7. Per contra, learned Public Prosecutor has vehemently opposed the bail application.

8. Having considered the rival submissions, facts and circumstances of the case, this Court prima facie finds that the contraband in the present case was not recovered from the conscious possession of the present petitioner; though as per the prosecution, petitioner is registered owner of the offending vehicle but a document has been placed on record by the counsel for the petitioner prima facie indicating that the petitioner has already sold the offending vehicle through an agreement to sale on 15.10.2016; till date out of 27 cited prosecution witnesses statements of only 5 prosecution witnesses have been recorded before the competent criminal Court and therefore, the trial is not likely to be concluded in near future. Under such circumstances and in view of the protracted period of detention suffered by the petitioner, which infringes his fundamental right to freedom and speeduy trial, this Court is inclined to enlarge the petitioner on bail. The twin conditions enumerated under Section 37 of the NDPS Act are duly satisfied in the present case.

9. Consequently, the seco