The right to a speedy trial under Article 21 can outweigh the rigors of Section 37 of the NDPS Act in cases of prolonged custody without trial.

JUDGMENT

Aman Chaudhary, J. (Oral)

This common order shall dispose of above-mentioned petitions as they arise out of the same FIR.

2. Prayer in these petitions filed under Section 439 Cr.P.C. is for grant of regular bail to the petitioners in case FIR No.253, dated 03.11.2022, registered under Sections 21 (c) and 29 of NDPS Act, 1985, at Police Station Sadar Fazilka,

3. Learned counsel contend that the petitioners are in custody for 1 year and about 8 months each. They allege false implication. The mandatory provisions of Sections 42, 50 and 52 of NDPS Act were not complied with. No independent witness was joined at the time of recovery. Charges were framed on 01.04.2024, however, none out of 19 prosecution witnesses has been examined. The petitioners are not involved in any other case.

4. Custody certificates dated 01.07.2024 and 02.07.2024, filed by learned State counsel are taken on record, as per which, the petitioners are behind bars for 1 year, 7 months, 25 days and 1 year, 7 months, 26 days respectively.

5. Learned State counsel opposes the bail on the ground that commercial quantity of contraband was recovered from both the petitioners, who were travelling together on a motorcycle and apprehended at the spot. He is unable to controvert the submissions made regarding the stage of the case and petitioners not being involved in any other case.

6. Heard.

7. Hon'ble the Supreme Court in the case of Dheeraj Kumar Shukla v. The State of Uttar Pradesh, SLP (Criminal) No.6690/2022 decided on 25.01.2023 observed that in case of long custody period, involving quantity recovered to be of commercial nature, where the trial is yet to commence, though charges had been framed, the condition of Section 37 of NDPS Act can be dispensed with. In the case of Bhupender Singh v. Narcotic Control Bureau (2022) 2 RCR (Crl.) 706, the Division Bench of this Court observed with regard to achieving balance between right to speedy trial guaranteed under Article 21 of the Constitution of India and rigors of Section 37 of NDPS Act. Similarly, in the case of Shariful Islam @ Sarif v. The State of West Bengal SLP (Crl.) No.4173/2022, decided on 04.08.2022, Hon'ble the Supreme Court granted bail to the petitioner in a case of recovery of commercial quantity of contraband, considering incarceration for over 1 year and 6 months and there being no likelihood of completion of trial in the near future. In the case of Munasi Masih v. State of Punjab, CRM-M-31504-2022, decided on 06.02.2023, this Court granted bail to a first offender from whom commercial quantity of contraband had been recovered and only 2 out of 13 PWs have been examined, by observing that in view of delayed trial, the rigors of Section 37 of NDPS Act can be diluted to an extent and the petitioner can be granted bail, keeping in mind the right to a speedy trial as envisaged Article 21 of the Constitution of India.

8. Keeping in view the facts and circumstances of the case, in particular that the petitioners are in custody for last 1 year, 7 months, 25 and 1 year, 7 months, 26 days respectively; not involved in any other case; charges were framed on 01.04.2024 and out of a total of 19 prosecution witnesses, none has been examined so far; the trial is likely to take a considerable time, thus their further incarceration would be violative of their right enshrined under Article 21 of the Constitution of India and the rigors of Section 37 of NDPS Act can be diluted bearing in mind the right to a speedy trial, thus, the present petitions for grant of regular bail deserve to be allowed.

9. As a result, the present petitions are allowed. The petitioners are ordered to be released on regular bail, subject to their furnishing bail/surety bonds to the satisfaction of trial Court/Duty Magistrate concerned and subject to them being not required in any other case. The petitioners shall abide by the following

(i) The petitioners will not tamper with the evidence during the trial.

(ii) The petitioners will no