The court emphasized that the right to a speedy trial under Article 21 of the Constitution supersedes statutory restrictions on bail, allowing for the accused's release due to prolonged detention without trial.

Order :

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

2. The concise facts of the case as alleged in the FIR are that the SHO PS Jamsar along with his team intercepted a Honda City Car bearing registration No.DL-3C-AK-4181 and upon search being made, petitioner alongwith one Avatar Singh were found sitting therein and 810 strips of 8100 Tramadol Hydrochloride 100 Mg SR Tablets were recovered from their possession. The weight of the medicinal drug was 2.430 Kg. His first bail application being SBCRLMB No.3405/2024 was dismissed as withdrawn by this Court vide order dated 24.04.2024 with liberty to renew the prayer for bail after recording the statement of Seizing Officer but he has not examined yet. Hence, the instant bail application.

3. 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. He submits that the contraband was recovered on 17.12.2020 and he has been behind bars since a very long period and the trial is progressing at a very slow pace. 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.

4. 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.

5. I have heard and considered the submissions made by both the parties and perused the material available on record.

6. Perusal of the record revealing that the seizing officer, after arresting the accused, has failed to appear before the trial Court for recording his statement for an unreasonable period of four (4) years. Such prolonged absence of the seizing officer is wholly unjustified and demonstrates gross negligence in discharging his official duties, thereby causing an undue and unreasonable delay in the trial proceedings. The failure of the prosecution to secure the presence of the seizing officer for such a long period has severely prejudiced the rights of the accused, violating the fundamental principle of a fair and speedy trial as enshrined under Article 21 of the Constitution of India. Thus, the prolonged non- appearance of the seizing officer casts serious doubt on the bonafides of the prosecution case, further weakening the evidentiary foundation of the trial. Till date out of total 13 witnesses, statements of only four prosecution witnesses have been recorded in the trial. 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 appears conflict 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 other surrounding factors align in consonance with the statutory stipulations, the personal liberty of an individual can not encroached upon by keeping him behind the bars for an indefinite period of time pending trial.

7. It is further revealing from the record that mandatory provisions have not been complied with at the time of search and seizure. It is further observed that pending trial, an accused cannot be kept behind the bars for an unreasonable period.

8. While keeping an accused detained, the opportunity to the prosecutor to