Prolonged incarceration affects the fundamental right to liberty, allowing bail to be granted despite statutory restrictions under the NDPS Act for first offenders.

JUDGMENT :

V. NARASINGH, J.

1. Heard learned counsel for the Petitioner and learned counsel for the State.

2. The Petitioner is an accused in connection with T.R. Case No.27 of 2020 pending on the file of learned Addl. Sessions Judge-Cum-Special Judge under NDPS Act, Koraput, arising out of Boipariguda P.S. Case No.80 of 2020 for commission of offence alleged under Sections 20 (b)(ii)(c) of NDPS Act.

3. Learned counsel, on instruction, submits that except the present BLAPL, no other bail application of the Petitioner relating to the aforementioned P.S. case is pending in any other Court.

4. Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned Addl. Sessions Judge-Spl, Judge, Jeypore, I/c by order dated 22.09.2023 in the aforementioned case, the present BLAPL has been filed.

5. It is submitted by the learned counsel that the Petitioner is in custody since 14.06.2020 on the allegation that he along with co-accused involved in transportation of contraband (ganja) to the tune of 1000 kgs.

6. Taking into account the period of custody, this Court by order dated 13.03.2023 in BLAPL No.12239 of 2022 called upon the learned Court in seisin to conclude the trial within the period of four months.

Since the trial was not concluded within the time stipulated the Petitioner again moved this Court in BLAPL No.8719 of 2023. The same was disposed of by order dated 15.09.2023 taking note of the report submitted by the learned Court in seisin that the time limit fixed by this Court was not placed before it till 29.08.2023.

And learned Court in seisin was requested to conclude the trial by the end of November, 2023.

6A. Since the trial was lingering because of non-availability of P.O., on the Administrative side, the trial record was transferred to the Court of learned Sessions Judge with the kind permission of the Hon’ble Administrative Judge.

7. It is submitted by the learned counsel that though the petitioner is in custody since for almost 3 years 7months, there is no progress in trial. Considering the same, Registrar(Judicial) was requested to place on record further report regarding the present status in the case at hand(T.R. Case No.27 of 2020).

8. Status of the case at hand as borne out from the report submitted by the learned Registrar(Judicial) on the basis of communication of the learned Dist. Judge is culled out hereunder for ready reference:

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“The case was withdrawn from the Court of Additional Sessions Judge-cum-Special Judge, Jeypore to the Court of Sessions Judge-cum-Special Judge, Koraput on 02.01.2024. So far three (3) witnesses have been examined by the learned Additional Sessions Judge-cum-Special Judge, Jeypore out of thirteen (13) charge sheeted witnesses. Now the case stands posted to 21.02.2024 for trial and summonses have been issued to charge sheeted witnesses for their examination. The Public Prosecutor has been asked to submit a list of witnesses whom the prosecution wishes to examine on priority basis, so that the trial can be expedited.

xxx xxx xxx”

9. Learned counsel for the State opposes the prayer for bail in view of bar under Section-37(1)(b)(ii) of the NDPS Act.

10. It is no doubt true that, prima facie, Section-37(1)(b)(ii) of the NDPS Act is a bar in the case at hand but at the same time this Court cannot be oblivious to the plight of the accused, who is facing trial for more than 3 and half years and in the factual matrix of the case at hand, no fault can be attributed to the Petitioner-accused, who is stated to be the first offender.

11. In this context it is apt to quote from the recent judgment of the Apex Court in the case of Mohd. Muslim @ Hussain Vs. State (NCT of Delhi), 2023 SCC Online SC 352