The right to a speedy trial is a fundamental right under Article 21, which can override statutory restrictions on bail in certain circumstances.

ORDER :

1. The jurisdiction of this court has been invoked by way of filing the instant 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 petitioner came to be arrested in this case on 06.04.2021 in connection with recovery of 731 grams MDMS Powder (in a plastic bag) from the Swift Car bearing registration No. RJ10-CA9722 which was being driven by one Kojaram and the petitioner was also sitting therein. While rejecting the earlier bail application this Court granted liberty to the petitioner to renew the prayer for bail after recording the statement of Investigating Officer. Now, he has been examined in the trial as P.W. 5. 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 06.04.2022 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. He further submits that co-accused Kojaram has been granted bail by this court vide order dated 25.03.2025 and the case of the petitioner stands on the same padestal, therefore, he too deserves the same benevolence.

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, however, he too does not dispute the fact that similarly situated co-accused Kojaram has been granted 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 on 06.04.2022, SHO along with his team, during nakabandi, intercepted a Swift car bearing registration No. RJ10-CA9722. The accused, identified as Khoja Ram (driver) and the other person with him was Pankaj, who is the present petitioner. Upon inspection, 731 grams MDMA, got recovered. Samples were collected and sealed, and petitioner was arrested while the vehicle was seized. An FIR No. 185/2022 was registered at the Police Station Kotwali, Nimbhahera under Section 8/22 of the NDPS Act.

7. It is revealing from the record that till date out of total 27 witnesses, statements of only 5 witnesses have been recorded in the trial. Besides the delay in trial, the petitioner has an arguable case in respect of non-compliance of the mandatory provisions and flouting of the Standing Orders 1/1989 issued by the Central Govt. with regard to seizure, sampling of the contraband and in my view, if the same would be adjudicated in favour of the petitioner, he may get acquittal. 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.

8. While keeping an accused detained, the opportunity to the prosecutor to lead evidence can on