JUDGMENT :

Rajnesh Oswal, J.

(through Video Conference from High Court, Jammu)

1. The instant bail application has been filed by the applicants after their application for grant of bail was rejected by the learned Additional Sessions Judge, Jammu on 12.03.2020 (hereinafter referred to as "the trial court").

2. The instant application has been filed on the ground that the applicants are innocent persons and have been falsely implicated in FIR bearing No. 201/2019 under Sections 8/21 and 29 Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act) registered with Police Station, Bakshi Nagar, Jammu. The applicants have further stated that the alleged contraband that has been recovered from the applicants is 40, 35 and 27 grams of heroin respectively. The said contraband, even if taken as a whole, does not fall within the category of commercial quantity and rather the same falls within category of the intermediate quantity. The applicants have further stated that they have been in custody ever since their arrest on 03.12.2019 and the charges have been framed on 27.01.2020. It is also stated that the rigor of Section 37 of the Act does not apply in the case in hand.

3. The respondent-Union Territory has filed the objections and preliminary objections have been raised by the respondent that the present application is not maintainable for the reasons that to maintain a subsequent/successive bail application, change of circumstance is required. However, in the instant application, there is no change of circumstance rather the applicants are trying their luck before this Court. It is further stated that the applicants do not deserve to be enlarged on bail as they are drug peddlers.

4. Learned counsels for the applicants argued that the applicants have been in custody for more than eight months and that too virtually without trial because the proceedings in the case are not being conducted because of restrictions imposed due to COVID-19 pandemic and no witness has been examined by the trial court till date. It is further submitted that FIR (supra) is the only FIR against the applicants and the prosecution has not brought any fact before this Court that the applicants are involved in any similar type of offences earlier also.

5. Per contra, Mr. Aseem Sawhney, learned AAG submits that the successive/subsequent bail application is filed without change of circumstance, as such, is not maintainable and the applicants being the drug peddlers are not entitled to bail.

6. Heard and considered.

7. As per the prosecution, the applicants were arrested on 03.12.2019 at Naka Point near Pawan Ice Cream, Bakshi Nagar, Jammu. On that day, the applicants were stopped and during checking, 27 grams of heroin was found from applicant No. 3, 40 grams from applicant No. 2 and 35 grams from applicant No. 1 as such FIR bearing No. 201/2019 (supra) stands registered against the applicants under Sections 8/21/22/29 of the NDPS Act. It is evident that the applicants were arrested on 03.12.2019 and as on date, they have been in custody for more than eight months. It is undisputed that the applicants were charge-sheeted for commission of offences mentioned above on 27.01.2020 and till date not even a single witness has been examined by the prosecution due to restrictions imposed in view of COVID-19 pandemic.

8. The main objection that has been raised by the respondent is that the successive bail application without change of circumstance is not maintainable in view of the judgment of the Apex Court rendered in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42. The Relevant portion of the judgment is reproduced as under:

"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of