Prolonged incarceration and pending trial can justify bail even under stringent conditions of the NDPS Act.

ORDER :

1. This Court perused the material available on record.

2. The petitioner has been arrested in connection with FIR No.196/2009 of Police Station Marwar Junction, District Pali for the offences punishable under Sections 8/15, 29 of NDPS Act and Section 3/25 of Arms Act. He has preferred this fifth bail application under Section 483 B.N.S.S., 2023 (439 Cr.P.C.).

3. Mr. Kailash Khilery, learned counsel appearing on behalf of the petitioner submits that six witnesses remain to be examined in the proceedings.

3.1 Learned counsel avers that the difference between the fourth bail application and the present bail application is that the fourth bail application bearing S.B. Criminal Misc. 4^th Bail Application No. 10406/2023 was dismissed by this Court on 23.08.2023, at which juncture, the petitioner had undergone custody of only about three years, having been arrested on 15.12.2019. The order dated23.08.2023 is reproduced hereunder:

“1. This criminal misc. fourth bail application under Section 439 Cr.P.C. has been preferred on behalf of the petitioner, who is in custody, in connection with FIR No.196/2009 registered at Police Station Marwar Junction, District Pali for the offence under Sections 8/15 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’) and Section 3/25 of the Arms Act, 1959.

2. The bone of contention in the present case is the recovery of contraband (poppy straw) weighing 530 kgs and also recovery of a pistol alongwith bullets from a vehicle (car) bearing registration No. RJ 27 TC 0397, being driven by co-accused Jamna Lal accompanied by present petitioner-Pappu Singh; the present petitioner ran away from the spot, while the co-accused was arrested.

3. The first bail application of the petitioner bearing S.B. Criminal Misc. Bail Application No. 5950/2020, was dismissed, by this Court vide order dated 16.06.2020.

3.1. The second bail application of the petitioner, bearing S.B. Criminal Misc. II Bail Application No.14222/2020 was also dismissed, as not pressed, by this Court vide order dated 14.12.2020, with liberty to file fresh bail application, after recording of the statements of Investigating Officer and Seizure Officer.

3.2. The third bail application of the petitioner, bearing S.B. Criminal Misc. III Bail Application No.6786/2022 was also dismissed, as not pressed, by this Court vide order dated 24.01.2023, with a direction to the learned trial court to record the statements of the remaining witnesses.

4. Learned counsel for the petitioner submitted that no contraband has been recovered from the possession of the present petitioner, and that, he was implicated in this case merely on the basis of the statement of the co-accused.

5. Learned counsel for the petitioner further submitted that the petitioner is in judicial custody since 15.12.2019 i.e. for last more than three years and conclusion of the trial is likely to take a long time, and therefore, the petitioner may be enlarged on bail.

6. Learned counsel for the petitioner also submitted that co accused Jamna Lal @ Jamna Ram has already been granted bail, and therefore, the present petitioner is also entitled to be enlarged on bail. It was further submitted that the petitioner is ready to furnish the requisite bail bonds and sureties.

7. On the other hand, learned Public Prosecutor opposed the aforesaid submissions made on behalf of the petitioner, while submitting that the contraband, as recovered in the present case, is quite more than the commercial quantity, and thus, the provisions of Section 37 of the NDPS Act are clearly applicable in the present case.

8. Learned Public Prosecutor further submitted that the petitioner remained absconding for more than ten years, and therefore, he is not entitled to be released on bail.

9. Heard learned counsel for the parties as well as perused the record of the case.

10. This Court observes that the petitioner was arrested for the offence under Sections 8 & 29 of the NDPS Act and Section 3/25 o