Prolonged incarceration and delay in trial can justify bail even in cases involving commercial quantities under the NDPS Act; the bar under Section 37 may be overridden based on clean antecedents and lack of fault by the accused.

Judgment

Mr. Jasgurpreet Singh Puri, J . :- The present is a second petition filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner in case bearing FIR No.160 dated 07.10.2021, under Section 15 of the NDPS Act, 1985, registered at Police Station Vairo Ke, District Fazilka.

2. Learned counsel for the petitioner submitted that the petitioner is in custody from 07.10.2021, which is 2 years and 11 days and in the present case, the allegations against the petitioner and the other four co-accused were that they were coming in a car from Rajasthan and they were apprehended on the basis of a secret information received by the police and the alleged recovery from the car of the petitioner in which he was sitting on the seat of the conductor was 62 kgs. of Poppy Husk and the commercial quantity as defined in the NDPS Act is 50 kgs. He further submitted that the petitioner was only sitting in the car and was not involved in the present case and he was not aware of the existence of any contraband in the car. He also submitted that the petitioner has clean antecedents and is not involved in any other case and in the present case, he was only a passenger and the same can be proved only at the time of trial. He further submitted that however from the other car, there was a recovery of 90 kgs of Poppy Husk. He also submitted that although the aforesaid quantity of 62 kgs of Poppy Husk which was recovered from the car in which the petitioner was sitting, falls in the category of commercial quantity, but the bar contained under Section 37 of the NDPS Act will not apply in the present case considering the fact that the petitioner is not involved in any other case and also considering the fact that the charges in the present case were framed on 25.04.2022, which is almost 1½ years ago and till date, only three prosecution witnesses have been examined, out of which, two witnesses were non-material witnesses because those were the witnesses, who had deposited the sample at different places including the Forensic Science Laborary and only one material witness has been examined till date. He also referred to the copy of the interlocutory orders passed by the learned trial Court after the framing of the charges stating that even on some dates, the accused were not even produced and rather on 15.07.2022, the prosecution witnesses were summoned through bailable warrants. The delay in the trial after framing of the charges, which is almost 1½ years ago is attributable to the prosecution witnesses and not to the petitioner. Learned counsel for the petitioner submitted that considering the aforesaid facts and circumstances, the petitioner may be considered for grant of regular bail.

3. Learned counsel for the petitioner has referred to the judgments of the Hon’ble Supreme Court passed in “ Satender Kumar Antil Vs. Central Bureau of Investigation and another ”, 2022(10) SCC 51, “Mohd. Muslim @ Hussain Vs. State (NCT of Delhi)”, 2023 AIR (SC) 1648, “ Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh ”, 2023 SCC Online SC 918 and “Rabi Prakash Vs. The State of Odisha” in Special Leave to Appeal (Criminal) No.4169 of 2023 and contended that in view of the aforesaid factual position as well as the judgments passed by the Hon’ble Supreme Court when there is a long delay in the trial and especially when it is not the fault of the accused and in that situation even the effect of Section 37 of the NDPS Act will be diluted in the given facts and circumstances of each and every case.

4. On the other hand, Mr. G.S. Sidhu, learned AAG, Punjab submitted on instructions that it is correct that t