The main legal point established in the judgment is the recognition of the right to speedy trial under Section 36 of the NDPS Act and the subservience of Section 37 of the NDPS Act to the Fundamental Right guaranteed under Article 21 of the Constitution of India.

JUDGMENT

Pankaj Jain, J. (Oral) - This petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case FIR No. 582 dated 30th of November, 2019 registered for the offences punishable under Sections 15(c) and 27(a) of the NDPS Act, 1985 at Police Station City Tohana, District Fatehabad.

2. As per the allegations levelled in FIR on 30th of November, 2019, the petitioner was apprehended in conscious possession of 500 kilograms of poppy husk without any licence. Reply by way of affidavit of Deputy Superintendent of Police, Tohana, District Fatehabad has been filed on behalf of the State, which is taken on record and the said fact that the petitioner being behind the bars since 30th of November, 2019 is not in dispute. As per prosecution, Challan was presented on 30th of May, 2020 and the charges were framed on 28th of April, 2021. Since then the trial has not proceeded qua the petitioner. Ld. Counsel for the petitioner submits that the Challan has been presented and there is no other case under the provisions of NDPS Act against the petitioner. There are 18 cited witnesses and none of them has been examined as yet. He thus submits that the petitioner has undergone custody of approximately 3 years and has a right to speedy trial guaranteed under Article 21 of the Constitution of India. He submits that the false case has been foisted upon the petitioner who has no criminal antecedents. Counsel asserts that right of an accused to have speedy trial stands recognized under the provisions of the NDPS Act as well and, thus, Section 37 of the NDPS Act in such situation has to be read as subservient to the Fundamental Right of the petitioner guaranteed under Article 21 of the Constitution of India.

3. He further relies upon order passed by this Court in CRM-M No.18805 of 2022 titled as Satnam Singh vs. State of Punjab, decided on 2nd of September, 2022, whereby the petitioner, who was in custody for more than 2 years, 2 months and 29 days was held entitled to bail. He refers to various orders passed by the Supreme Court in Shariful Islam @ Sarif vs. The State of West Bengal passed in Special Leave to Appeal (Crl.) No.4173 of 2022 decided on 4th of August, 2022, Gopal Krishna Patra @ Gopalrusma Vs. Union of India passed in Criminal Appeal No.1169 of 2022 decided on 5th of August, 2022, Chitta Biswas @ Subhas vs. The State of West Bengal passed in Criminal Appeal No(s).245/2020 decided on 7th of February, 2020 and Mohammad Salman Hanif vs. The State of Gujrat, Special Leave to Appeal (Crl.) No(s).5530/2022 decided on 22nd of August, 2022 wherein undertrials have been granted relief of regular bail on the basis of custody dehors Section 37 of the NDPS Act. He also relies upon judgment of the Supreme Court in Sujit Tiwari vs. State of Gujarat and another, reported as (2020) 13 SCC 447 wherein Apex Court found that a person in custody for more than 2 years was entitled to bail.

4. Mr. Jain appearing for the State does not dispute the factual assertions made by counsel for the petitioner based on record however he submits that the trial could not proceed for the reason one of the co-accused (Dharambir) could not be arrested till date and further supplementary Challan was required to be filed qua co-accused Tony alias Richpal and the same was filed only on 20th of July, 2022.

5. I have heard Ld. Counsel for the parties and have gone through the records of the case.

6. The petitioner has already suffered prolonged incarceration of about 3 years. There is no other case under the provisions of NDPS Act registered against the petitioner. There are 18 cited witnesses and, thus trial is expected to take a long time and is not going to conclude in near future.

7. In the case of Shariful Islam @ Sarif' case (supra), Apex Court found that an under-trial having suffered incarceration over 1 year and 6 months is entitled for grant of regular bail holding that :-

"2. Taking into consideration the fact that the petitioner is