IMPORTANT POINT
Prolonged incarceration can justify bail despite statutory restrictions, emphasizing the fundamental right to liberty.

JUDGMENT :

Pankaj Jain, J.

This petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case F.I.R. No.0078 dated 27.09.2022 registered for the offences punishable under Sections 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 473 of the Indian Penal Code, 1860 added later on, at Police Station Amir Khas, Tehsil Jalalabad, District Fazilka.

2. Custody Certificate of the petitioner has been filed today in Court. The same is taken on record.

3. As per the case of the prosecution a secret information was received to the effect that the present petitioner is habitual of selling intoxicating tablets. It is claimed that accordingly a naka was laid. The petitioner was apprehended and 2000 intoxicating tablets salt ‘Tramadol Hydrochloride’ weighing 806.64 grams were recovered from his conscious possession.

4. Counsel for the petitioner submits that dehors the merits of the case the petitioner has already faced incarceration for more than 1 year and 7 months. Challan already stands presented and even the charges have been framed yet till date none out of 16 cited witnesses could be examined. The petitioner has clean antecedents and thus he would be entitled for grant of regular bail.

5. Learned counsel for the petitioner relies upon order passed by Apex Court in the case of Rabi Prakash Vs. The State of Odisha passed in Special Leave to Appeal (Crl.) No(s). 4169 of 2023 decided on 13.07.2023 wherein it has been held as under:-

“4. As regard to the twin conditions contained in Section 37 of the NDPS Act, learned counsel for the respondent – State has been duly heard. Thus, the 1st condition stands complied with. So far as the 2nd condition re: formation of opinion as to whether there are reasonable grounds to believe that the petitioner is not guilty, the same may not be formed at this stage when he has already spent more than three and a half years in custody. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.”

6. Earlier to Rabi Prakash’s case (supra) also Apex Court has consistently held that the prolonged incarceration has to be considered dehors bar contained under Section 37 of the NDPS Act. The Supreme Court in order dated 22.08.2022 passed by the Supreme Court in Special Leave to Appeal (Crl.) No.5530-2022 titled as “Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, had held as under:-

“We are inclined to release the petitioner on bail only on the ground that he has spent about two years in custody and conclusion of trial will take some time.

Consequently, without expressing any views on the merits of the case and taking into consideration the custody period of the petitioner, this special leave petition is accepted and the petitioner is ordered to be released on bail subject to his furnishing the bail bonds to the satisfaction of the Special Judge/ concerned Trial Court.

The special leave petition is, accordingly, disposed of in the above terms.

Pending application(s), if any, shall also stand disposed of.”

7. The above-said case was also a case under the NDPS Act, 1985 and the FIR had been registered under Sections 8(c), 21(c) and 29 of the said Act. The case of the prosecution therein was that the recovery from the said petitioner (therein) was of commercial quantity. The Supreme Court had observed that the concession of bail was granted to the petitioner (therein) only on the ground that he had spent about two years in custody and the conclusion of trial will take some time.

8. Supreme Court in order dated 07.02.2020 passed by the Hon’ble Supreme Court in Criminal Appeal No.245/2020 titled as “Chitta Biswas Alias Subhas vs. The State of West Bengal” was pleased to grant concession of bail to the petitioner (therein) in a case where the custody wa