The court emphasized the right to personal liberty under Article 21, ruling that continued detention without compelling evidence is unjustified, leading to the granting of bail.

JUDGMENT

Mr. Jagmohan Bansal, J. (Oral)

The petitioner, through instant petition under Section 439 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is seeking regular bail in FIR No.37 dated 24.02.2023 under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'), registered at Police Station GRP (Government Railway Police) Ludhiana, District Ludhiana.

2. The case of the prosecution is that on 24.02.2023, a police party of GRP Ludhiana apprehended the petitioner along with Pankaj Kumar who is a juvenile. During their search, 2.6 Kg of opium was recovered. Police after completing investigation has filed its report under Section 173 Cr.P.C against the petitioner and separate proceedings have been initiated against co-accused under Juvenile Justice (Care and Protection of Children) Act, 2015.

3. Learned counsel for the petitioner, inter alia contends that as per Schedule annexed to NDPS Act, quantity more than 2.5 Kg of opium is considered as commercial quantity. The respondent-State has intentionally shown recovery of 2.6 Kg of opium to make the alleged recovery as commercial quantity. The petitioner is in custody since 27.02.2023 and he is not involved in any other offence. The co-accused has already been released on bail though on the ground that he is a juvenile. The petitioner is also an 18 years old boy. No recovery is to be effected from him. He has been wrongly implicated in the commission of alleged offence. There is no possibility to flee from justice. There are 15 prosecution witnesses and till date, none of them has been examined.

4. Reply by way of affidavit dated 14.03.2024 of Balram Rana, P.P.S. Superintendent of Police (Inv.), GRP Ludhiana on behalf of respondent-State is taken on record. Registry is directed to tag the same at an appropriate place.

5. Custody certificate dated 04.07.2024 is taken on record. As per custody certificate, the petitioner is in custody since 27.02.2023 and is not involved in any other offence.

6. Learned State Counsel submits that police report has already been filed and charges stand framed. He fairly concedes that out of 15 witnesses none has been examined, however, submits that petitioner is involved in the commission of grave offence, thus, no leniency is warranted and release of petitioner would hamper the trial.

7. A two judge Bench of Hon'ble Supreme Court in Satender Kumar Antil v. CBI; (2022) 10 SCC 51, with respect to prevailing conditions of under trial prisoner in India has observed:

"6. Jails in India are flooded with under trial prisoners. The statistics placed before us would indicate that more than 2/3rd of the inmates of the prisons constitute under trial prisoners of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offence, being charged with offences punishable for seven years or less. They are not only poor and illiterate but also would include women. Thus, there is a culture of offence being inherited by many of them. As observed by this Court, it certainly exhibits the mindset, a vestige of colonial India, on the part of the investigating agency, notwithstanding the fact arrest is a draconian measure resulting in curtailment of liberty, and thus to be used sparingly. In a democracy, there can never be an impression that it is a police State as both are conceptually opposite to each other."

8. Intent of arrest and reason of denial of bail is to:

i) Secure the appearance of the accused at the time of trial;

ii) allay possibility of repeating of offence & jeopardising own life on account of grim prospect of being convicted; and

iii) Avoid possibility of tampering of evidence and security of witnesses who may be pressurised or maltreated.

9. A person who seeks to be liberated must take judgment and serve sentence in the event of his conviction. The nature of the crime charged, severity of punishment prescribed, prime facie available evidences, history & background of