Prolonged incarceration infringes the right to speedy trial, allowing bail despite statutory restrictions under the NDPS Act when the trial is unlikely to conclude promptly.

ORDER :

ANIL KUMAR UPMAN, J.

1. These second bail applications under Section 483 BNSS have been filed on behalf of the petitioners, who have been arrested in connection with FIR No.302/2024 registered at Police Station Vaishali Nagar, District Jaipur (West) (Raj.) for offence punishable under Section 8/20 of the NDPS Act. After completion of investigation, police filed charge-sheet in this matter before the concerned Court for offences punishable under Sections 8/20 and 8/29 of the NDPS Act.

2. The first bail application filed on behalf of the petitioner, Balkishan was dismissed on merits by this Court vide order dated 28.11.2024 whereas the first bail application of the petitioner, Indrajit Mandal was dismissed as withdrawn by this Court vide order dated 28.11.2024. Now, these second bail applications have been preferred on behalf of the petitioners.

3. Learned counsel for the petitioners submit that petitioners have falsely been implicated in this case. It is submitted that petitioners Balkishan and Indrajit Mandal are in custody since 29.07.2024 and 17.09.2024, respectively, and as such, they have suffered incarceration of about one year and seven months and one year and four months, respectively. Arguing the case of petitioner, Balkishan, it is submitted that he is an auto driver. It is submitted that substance which is said to be recovered from the auto of the petitioner was loaded by co-accused, Indrajit. In these circumstances, it cannot be said that petitioner was in conscious possession of the contraband. Arguing the case of petitioner, Indrajit, it is submitted that no contraband has been recovered from the possession of the petitioner. It is submitted that petitioner has been made accused in this case solely on the basis of police interrogation of co-accused, Balkishan.

4. Counsel submit that the recovered contraband does not fall within the definition of “Ganja” because it consists of leaves and stalks of the cannabis plant. It is submitted that the leaves and stalks of cannabis plant are expressly excluded from the definition of Ganja. The Central Government Notification S.O. 527 dated 16th July, 1996, which specifies small and commercial quantities of narcotic drugs and psychotropic substances, does not prescribe any small or commercial quantity in respect of the cannabis plant. Counsel submit that it has been admitted by the Seizure Officer in his testimony that the seized contraband contains leaves and stalks. Counsel submit that there is total non-compliance of Section 42 of the NDPS Act as alleged recovery was made on the basis of prior information, but said information was neither reduced in writing, nor sent to the immediate superior officer and during the course of cross-examination, this fact has candidly been admitted by the Investigating Officer. In this regard, learned counsel for the petitioners have relied upon the judgment of Hon’ble Constitutional Bench of the Supreme Court in the case of Karnail Singh versus State of Haryana reported in (2009) 8 SCC 539 wherein it has been held by the Hon’ble Supreme Court that total non-compliance of Section 42 of NDPS Act is not permissible and will defeat the conviction. It is further submitted that despite the availability of the independent witnesses, no independent witness was associated during the search and seizure proceedings. Counsel further submit that association of the independent witnesses contemplated under Section 100 of the Cr.P.C (Section 103 of BNSS) is not a mere formality and concerned officer is required to make all endeavour to associate the independent witnesses from the same vicinity. He cannot escap