Delayed trials and jurisdictional flaws justify bail under NDPS Act, balancing statutory obligations with constitutional rights against prolonged detention.

ORDER :

FARJAND ALI, J.

1. The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C./483 BNSS at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

2. 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. 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.

3. 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.

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

4.1 The petitioner is behind the bars in this case since last two and half years for contravening the penal provision of NDPS Act. In this case, the contraband came to be recovered from two vehicles and allegedly the petitioner was sitting in one of them. The pace of trial suggesting that early culmination of trial is not a seeming fate. It is the consistent view of this Court that for the purpose of proving the charge against the accused, only a reasonable period can be granted to the prosecution to lead evidence while keeping the accused detained. In common parlance, a session case must commence and culminate within a session i.e. if commenced in the month of April then should be ended in the month of March of the next year. This Court is conscious of the voluminous pendency and dearth of adequate judicial officers and therefore, the first bail application was dismissed. Today, the accused is languished in jail for more than 30 months, it is felt apt to hear the bail plea againa. It is noticed that all the prosecution witnesses have not been examined till now, presumably, still a long time would be taken in conclusion of the trial.

4.2 Gravity of the charge and availability of material in support thereof is one aspect and protection of one’s fundamental right is another. There is a statutory bar under Section 37 of NDPS Act as per which bail in NDPS cases can only be granted upon satisfaction of the twin conditions mentioned therein, first, giving audience to the public prosecutor to here on the bail plea, second and crucial is presumption of the Court that the accused is not guilty of the alleged charge. This crucial aspect has been made to critical enunciation by Hon’ble the Supreme Court in the case of Mohd. Muslim @ Hussain V. State , AIR 2023, SC 1648 and certain others. This Court is also of the view that a definite finding during trial is neither desirable nor appropriate to say that whether the accused is guilty or not. If it is done, then there remains nothing in the trial to proceed because the material ends with this proclamation that here either the accused is guilty or not guilty. If there appears a conflict between statutory bar and fundamental right, than certainly the later would prevail and should be given preference by the Court of law being sentinel of the constitution.

4.3 Besides the protraction of trial when the accused is in prison, a significant rather vital defect has been noticed in the manner of apprehension of the accused and seizure of the contraband. The contraband in this matter came to be taken by the respondent officers at one place and whereafter the accused and the commodity were ta