Prolonged detention without trial violates Article 21 rights, warranting bail under specific conditions to ensure fairness while addressing state concerns on non-bailable offenses.

JUDGMENT :

V. NARASINGH, J.

1. Since both the BLAPLs relate to the same P.R. Case (Cuttack P.R. Case No.237 of 2022-23) they are heard together and disposed of by this common order, on the consent of the parties.

2. Heard learned counsel for the Petitioners and learned counsel for the State.

3. The Petitioners are accused in connection with 2(a) C.C. No.47 of 2022, pending in the Court of the learned 3rd Additional Sessions Judge, Cuttack, arising out of P.R. Case No.237 of 2022-23 for alleged commission of offences under Sections 20(b)(ii)(C) of the NDPS Act.

4. Learned counsel, on instruction, submits that except the present BLAPLs, no other bail application of the Petitioners relating to the aforementioned P.S. Case is pending in any other Court.

5. Being aggrieved by the rejection of their application for bail U/s.439 Cr.P.C. by the learned 3rd Additional Sessions Judge, Cuttack, I/c, by order dated 19.12.2023 in the aforementioned cases, the present BLAPLs have been filed.

6. Earlier the bail application of the Petitioner (Aminur Molla) in BLAPL No.14662 of 2023 and the Petitioner (Soinur Molla) was rejected by common order dated 26.06.2023 in BLAPL Nos.4908 & 4900 of 2023 respectively.

7. It is submitted by the learned counsel that the Petitioners are in custody since 24.07.2022 and there is no progress in trial.

8. Taking note of the same, a report was called for from the learned Court in seisin. The said report is extracted hereunder:-

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“This is a case initiated against the accused persons namely Sainur Molla, Aminur Molla and Alam Mandal for the offence u/s 20(b)(ii)(C) of the NDPS Act.

This case was instituted before the Court of Sessions Judge-cum- Special Judge, Cuttack on 24.07.22 and received on transfer by this court on 23.06.23. Charge u/s 20(b)(ii)(C) of the NDPS Act has been framed against the accused persons on 03.07.23 and the case was posted to 05.08.23 for recording of evidence. In this case, the I.I.C of Excise, EI & EB, Unit-II, Cuttack submitted final P.R and cited three witnesses including I.O. Till date, no witnesses have been examined. Now the case stands posted to 06.03.2024 for recording of evidence of the prosecution witnesses.

With regard to the report sought for by the Hon'ble Court concerning the non-availability of the Court in seisin, I am to intimate that presently, this Court is functioning without its Presiding Officer as the previous P.O. has been transferred since 27.09.2023 for which, the trial of the case has been stalled since then. Further resumption of the trial and its eventual completion awaits joining of the new Presiding Officer to this Court.”

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9. On the of ground of pretrial detention as an affront to Article 21 of the Constitution, learned counsel for the Petitioner seeks release.

10. While learned counsel for the State with his usual fairness does not oppose such proposition and submits that the same cannot have any universal application and more so in view of the rigors of Section 37(1)(b)(ii) of NDPS Act and the accusation against them being seizure of contraband to the tune of 104Kgs (Ganja). 10-A. Section 37(1)(b)(ii) of NDPS Act is quoted below for convenience of ready reference:-

“37. Offences to be cognizable and non-bailable:

(1) Notwithstanding anything contained in the Code of Criminal Procedure Code, 1973 (2 of 1974) -

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an