Prolonged incarceration and lack of witness examination can justify bail under the NDPS Act, overriding statutory restrictions.

ORDER :

(KULDEEP MATHUR, J.)

1. This application for bail under Section 439 Cr.P.C. (483 BNSS) has been filed by the petitioner who has been arrested in connection with F.I.R. No.48/2021, registered at Police Station Girab, District Barmer, for offences under Sections 8/21, 24, 25 and 29 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 co-accused persons namely Kalu Singh and Khat Singh (S.B. Criminal Miscellaneous Bail Application No. 4/2025) have already been enlarged on bail by this Court vide order dated 24.01.2025. Learned counsel further contended that the petitioner is in judicial custody since 08.07.2024 and till date out of 27 cited prosecution witnesses, none of the cited prosecution witnesses have been examined before the competent criminal Court.

4. Drawing attention of the Court towards the daily order sheets of the competent criminal Court below, learned counsel submitted that delay in trial is not attributable to the present petitioner. Learned counsel submitted that in the last more than 3 years and 6 months, none of the prosecution witnesses has been examined before the competent criminal Court, therefore, looking to the pace at which trial is being conducted against the present petitioner, the same is not likely to be concluded in the near future.

5. On these grounds, he implored the Court to enlarge the petitioner on bail.

6. Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that in the present case, a huge quantity of the contraband has been recovered by the Investigating Agency. Therefore, looking to the seriousness of the allegations levelled against the present petitioner, he do not deserve to be enlarged on bail. However, he was not in a position to refute the fact that the petitioner is in judicial custody since last more than 3 years and 6 months and till date date out of 27 cited prosecution witnesses, none of the cited prosecution witnesses has been examined before the competent criminal Court. He was also not in a position to refute the fact the above named co- accused persons have already been enlarged on bail by this Court.

7. Heard learned counsel for the parties and perused the order dated 24.01.2025 passed by of this Court. The order dated 24.01.2025 is reproduced hereinbelow for ready reference:-

“This application for bail under Section 439 Cr.P.C. (483 BNSS) has been filed by the petitioners who have been arrested in connection with F.I.R. No.48/2021, registered at Police Station Girab, District Barmer, for offences under Sections 8/21, 24, 25 and 29 of NDPS Act.

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

Learned counsel for the petitioners submitted that as per prosecution, on 07.07.2021, the Additional S.P. ATS Unit, Jodhpur received a secret information that petitioner- Kalu Singh and the co-accused Derawar Singh would supply a huge quantity of the contraband received by them from Pakistan to their customers who had come from Punjab. In furtherance of the aforesaid information, the police reached near Gagariya Bus Stand at about 1 pm and apprehended the co-accused Derawar Singh. The co-accused Derawar Singh in his confessional statement/information informed that he alongwith the petitioner Kalu Singh received 22 packets of contraband (heroine) from Pakistan and had concealed the same under the bushes near border. The co- accused Derawar Singh in his confessional statement/information further stated that on 07.07.2021, he alongwith the petitioner- Kalu Singh and the co-accused Devi Singh came in Bolero vehicle to border area and loaded 22 packets of contraband (heroine) in the offending vehicle and thereafter, unloaded the same in a field belonging to the petitioner- Khet Singh.

Learned counsel further submitted that the petitioners have been falsely imp