Point of Law: Without expressing any opinion on merits or demerits of rival submissions and considering facts and circumstances on record, in Court view, case for bail is made out.

JUDGMENT :

Satyen Vaidya, J.

Petitioner is an accused in case FIR No. 05/2020, dated 30.01.2020, registered under Sections 20 & 25 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station State, CID Bharari, Shimla, H.P.

2. Petitioner is facing trial for offences under Section 20 and 25 of ND&PS Act in pursuance to challan filed by respondent. The allegation against petitioner is that he was an occupant of a Car bearing No. HP65A - 7500, from which 1.340 Kgs of ‘Charas’ was recovered.

3. Previously, vide order dated 29.04.2022, passed in Cr.MP(M) No. 796 of 2022, a Co-ordinate Bench of this Court had allowed a temporary bail to the petitioner keeping in view the ailment of his mother. Petitioner had surrendered on expiry of the period of liberty allowed in his favour.

4. Petitioner has now prayed for grant of bail on the ground that his constitutional right of expeditious disposal of trial has been infringed. As per petitioner, he is in custody for almost two years now and the trial has not concluded, rather, it is progressing at snails pace.

5. In its status report dated 05.12.2022, respondent has submitted that the prosecution has cited seventeen witnesses in support of its case. The statements of eight witnesses have already been recorded. Three of the remaining witnesses have now been summoned for 27.02.2023 for examination before learned Special Judge.

6. Learned Additional Advocate General has opposed the prayer of the petitioner, on the ground that Section 37 of ND&PS Act, has application in the facts of the case and merely, on the ground of delay in conclusion of trial, petitioner cannot be released on bail.

7. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.

8. The fetters placed by Section 37 of ND&PS Act, evidently have been instrumental in denial of right of bail to the petitioner in the instant case till date. The question that arises for consideration is, can the provisions of Section 37 of the Act, be construed to have same efficacy, throughout the pendency of trial, notwithstanding, the period of custody of the accused, especially, when it is weighed against his fundamental right to have expeditious disposal of trial?

9. As is suggested by the contents of status report not even half of prosecution witnesses have been examined till date despite the fact that petitioner is in custody since 29.01.2020. In the considered view of this Court, the Constitutional guarantee of expeditious trial cannot be diluted by applying the rigors of Section 37 of ND&PS Act in perpetuity.

10. Recently, in a number of cases, under- trials for offences involving commercial quantity of contraband under ND &PS Act have been allowed the liberty of bail by Hon’ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.

11. In Mahmood Kurdeya Vs. Narcotic Control Bureau (2022) 3 RCR (Criminal) 906, Hon’ble Supreme Court has held as under:-

“6.What persuades us to pass an order in favour of the appellant is the fact that despite the rigors of Section 37 of the said Act, in the present case though charge sheet was filed on 23.09.2018 even the charges have not been framed nor trial has commenced.”

12. In Nitish Adhikary @ Bapan Vs. The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022, Hon’ble Supreme Court has held as under:-

“During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.”

13. In Gopal Krishna Patra @