Point of Law: Undue delay in trial, in appropriate cases, can be a reason to release an accused of offence involving commercial quantity under ND&PS Act.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, a prayer has been made to release the petitioner on bail under Section 439 of Cr.P.C. in case FIR No. 75/2020, dated 29.12.2020, registered under Sections 20 & 29 of Narcotic Drugs and Psychotropic Substances, Act (for short ‘ND&PS’ Act), at Police Station N.C.B. Nahan, District Sirmour, HP.

2. Petitioner was arrested on 29.12.2020 and is in custody since then.

3. The case as alleged against petitioner is that the Narcotic Control Bureau (N.C.B.), on the basis of a secret information, intercepted vehicle (Maruti Alto) with registration No. HP35-4856 near Yashwant Parmar Chowk, Nahan, District Sirmour H.P. Petitioner alongwith another person named Satram Lal, were found occupying the vehicle. A search was conducted and huge quantity of 11.700 Kilograms of Charas was recovered from the vehicle. The case was registered. Petitioner alongwith other occupant of the vehicle, named Satram Lal, were arrested. Investigation was carried and more persons namely Om Prakash, Pappu, Yogesh and Manoj Kumar, were also arrayed as accused.

4. On conclusion of investigation, the challan has been presented and is presently pending adjudication before learned Special Judge-II, Nahan, District Sirmour, H.P.. Petitioner is one of the under trials.

5. It has been submitted on behalf of the petitioner that he has been falsely implicated in the case and he is suffering incarceration since 29.12.2020. It is further submitted that petitioner is permanent resident of Village Kandadhar, P.O. Showad, Tehsil Anni, District Kullu, H.P. and in case of his release on bail, there is no likelihood of his absconding or fleeing from the course of justice. Petitioner has also undertaken to abide by all the terms and conditions as may be imposed by this Court. As per petitioner, the trial has not even begun till date and in such circumstances, he can not be detained in custody for indefinite period.

6. On the other hand, Mr. Dev Raj, learned Counsel, has opposed the bail petition on the ground that petitioner is not entitled to the bail in view of the rigors of Section 37 of ND&PS Act. It is further submitted that twice in the past i.e. on 05.05.2021 and 24.07.2021, this Court had rejected the prayer of the petitioner for grant of bail in the abovementioned FIR by discussing the merits. Petitioner has not been able to show any changed circumstance, so as to entitle him to bail. It is also submitted that the accusations against petitioner are very serious in nature and in case petitioner is released on bail, there is every likelihood that he will re-indulge in the trade of contraband, which will be prejudicial to the interest of society at large.

7. I have heard learned counsel for the petitioner as well as learned counsel for the respondent-NCB and have also gone through the status report.

8. Record reveals that petitioner approached this Court for grant of bail in above noted case by way of Cr.MP(M) No. 250 of 2021. This Court had rejected the prayer of the petitioner by observing as under:-

“7. The recovery of the contraband is from a private car, in which both the petitioners were present. A perusal of the bail petition does not reveal a specific stand taken about the presence in the vehicle or knowledge of the contraband. Under Section 37 of the NDPS Act, the burden is entirely on the petitioners to meet the twin conditions, which they failed to do so.”

9. Petitioner filed another bail petition before this Court, which was registered as Cr.MP(M) No. 1376 of 2021 and was again rejected on 24.07.2021 for the same reasons as given in earlier rejection order. Thereafter, petitioner has approached this Court for grant of bail by way of Cr.MP(M) No. 1992 of 2021 and Cr.MP(M) No. 1738 of 2022 and both the times, the bail petitions filed on behalf of the petitioner, were withdrawn. This is the fifth petition for grant of bail filed on behalf of the petitioner in the same case.

10. 11.700 Kilograms of Charas was recovered from