The central legal point established in the judgment is the consideration of the petitioner's right under Article 21 of the Constitution of India in granting bail under the NDPS Act.

JUDGMENT

Vikas Bahl, J. (Oral) - This is a first bail application under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR No.86 dated 24.12.2017 registered under Sections 399 and 402 IPC; Sections 25/27 of the Arms Act, 1959; and Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985, at Police Station Sarai Amanat Khan, District Tarn Taran.

2. Learned counsel for the petitioner has submitted that in the present case, no overt act has been attributed to the petitioner and other co-accused and at best, it could be stated to be a case of preparation for carrying out an offence. It is further submitted that no recovery has been made from the present petitioner and the alleged recovery of 285 grams of Heroin has been effected from co-accused i.e., Avtar Singh. It is further submitted that the petitioner was arrested on 24.12.2017 (more than 4 years and 3 months) and there are total 8 prosecution witnesses, out of which, 5 have already been examined and keeping in view the custody of the petitioner, he deserves the concession of regular bail, as any further incarceration would be violative of the right of the petitioner enshrined under Article 21 of the Constitution of India. In support of the said contention, learned counsel for the petitioner has relied upon a Division Bench of this Court in CRM-3773-2019 in CRA-D-198-DB-2017, in support of his contentions.

3. Learned State counsel has opposed the present petition for regular bail and has submitted that the petitioner is involved in two other cases.

4. Learned counsel for the petitioner, in rebuttal, has relied upon a judgment of the Hon'ble Supreme Court in "Maulana Mohd. Amir Rashadi Vs. State of U.P. and another", reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen while deciding a bail application and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in other cases. The relevant portion of the said judgment is reproduced hereinbelow:-

"As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."

5. This Court has heard learned counsel for the parties and has gone through the paper-book. The Division Bench of this Court in CRM-3773-2019 in CRA-D-198-DB-2017, vide a detailed judgment dated 12.01.2022, has observed as under:-

1. The issue at hand is the consideration for suspension of sentence in cases under the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'). Section 37 of the Act is reproduced herein below:-

" 37. Offences to be cognizable and non-bailable-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) (a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."

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27. Thus we find that in the year 1994, the Supreme Court held that a person who had undergone five years of pre-