The court may grant bail under the NDPS Act even when Section 37 applies, considering the right to a speedy trial and circumstances of first-time offenders.

JUDGMENT

Jasjit Singh Bedi, J.

The prayer in this second petition under Section 439 Cr.P.C is for the grant of regular bail to the petitioner in case bearing FIR No.02 dated 05.01.2023 under Sections 15, 29 of the NDPS Act, 1985 and Sections 353, 332, 333 and 186 IPC registered at Police Station Khanauri, District Sangrur.

2. The brief facts of the case are that secret information was received to the effect that Harwinder Singh @ Mintu (since granted the concession of bail vide order dated 15.07.2024, Annexure P-5), Jaswant Kaur @ Kulwant Kaur @ Bant (petitioner) and Krishan Singh (since granted the concession of bail vide order dated 15.07.2024, Annexure P-4) were habitual of selling poppy husk and would be travelling in their vehicle bearing registration No.HR-31H-8444. If they were nabbed, a huge quantity of poppy husk could be recovered.

Based on the information received, a barricade was set-up and 150 kgs. of poppy husk came to be recovered from them.

3. The learned counsel for the petitioner contends that the petitioner has been falsely implicated in the present case. The mandatory provisions of Sections 42 and 50 of the NDPS Act had not been complied with in their proper perspective. No independent witness was joined at the time of search and seizure. As she was a first-time offender, in custody since 05.01.2023 and only 01 out of the 19 prosecution witnesses had been examined so far, the trial of the present case was not likely to be concluded anytime soon and therefore, she was entitled to the concession of bail in view of the judgment of the Hon'ble Supreme Court in the case of Nitish Adhikary @ Bapan v. The State of West Bengal, SLP (Crl.) Nos.5769/2022 arising out of judgment and order dated 04.05.2022 in CRM(NDPS) No.442/2022, decided on 01.08.2022 and Hasanujjaman & others v. The State of West Bengal, SLP (Crl.) No.(s).3221/2023 arising out of impugned final judgment and order dated 29.11.2022 in CRM(NDPS) No.1323/2022, decided on 04.05.2023, moreso, when two co-accused have already been granted the similar concession.

4. On the other hand, the learned State counsel contends that commercial quantity of contraband had been recovered from the petitioner and her co-accused. Therefore, in view of the bar contained under Section 37 of the NDPS Act, the petitioner was not entitled to the grant of bail. He, however, concedes that the petitioner was a first time offender, in custody since 05.01.2023 but only 01 of the 19 prosecution witnesses had been examined so far and that two co-accused have been granted the similar relief.

5. I have heard the learned counsel for the parties.

6. The Hon'ble Supreme Court in the case of Nitish Adhikary @ Bapan v. The State of West Bengal SLP (Crl.) Nos.5769/2022 Decided on 01.08.2022 held as under:-

"As per the office report dated 29.07.2022, copy of the show cause notice along with Special Leave Petition was supplied to the Standing Counsel for the State of West Bengal and separate notice has been served on the State also. However, no one has entered appearance on their behalf.

The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS 2 Act, registered at Police Station Bongaon, West Bengal.

During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.

The petitioner is accordingly, directed to be released on bail subject to him furnishing bail bonds to the satisfaction of the Trial Court.

The Special Leave Petition is disposed of on the afore-stated terms.

Pending application(s), if any, s