The court emphasized the preservation of rights under Article 21, allowing bail for offenses with less than commercial quantities when trial delays occur and no witnesses have been examined.

JUDGMENT :

Harpreet Singh Brar, J.

Prayer in this petition filed under Section 439 Cr.P.C., is for grant of regular bail to the petitioner in FIR No.0090 dated 11.07.2024 registered under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’) IPC at Police Station Subhanpur, District Kapurthala.

2. As per the allegations in the FIR, on 11.07.2024, a group of police officers, including ASI Devinder Singh, ASI/LR Kulwinder Singh, CT Prabhjot Singh, CT Tajinder Singh, L/Sct Suman Kumari, and PHG Manjot Singh, were patrolling in village Lakhana Khole with a laptop printer. Upon reaching the area, a woman on seeing the police party became perplexed and thrown a plastic bag. Thereafter, the police party stopped her, identified themselves, and inquired about the contents of the bag. Thereafter, Jagir Kaur admitted that the bag contained intoxicants, including heroin. The police party then proceeded to search the bag, and recovery of 5 grams of heroin and 26.26 grams of another intoxicating substance was effected. The substances were weighed, sealed, and labeled accordingly. Jagir Kaur was arrested and the FIR (supra) was registered.

3. Learned counsel for the petitioner, inter alia, contends that the petitioner has been falsely implicated in the present case. Further the alleged contraband, which is recovered from the possession of the petitioner, does not falls within the ambit of commercial quantity and as such, the embargo under Section 37 of the NDPS Act, is not applicable to the case of the present petitioner. He further submits that the petitioner has suffered incarceration of more than 07 months and not even a single prosecution witness has been examined. Further there is a gross violation of the mandatory safeguards provided under Sections 50 and 52-A of the NDPS Act.

4. Learned counsel for the petitioner further contends that although the petitioner is involved in other cases registered under the NDPS Act, however, she is on bail in all those cases and to support his contentions, he has relied upon the judgment of the Hon’ble Supreme Court in “ Maulana Mohd. Amir Rashadi vs. State of U.P. and another ” , 2012 (2) SCC 382 , and this Court in “ Amritpal Singh vs State of Punjab ”, 2022(4) Law Herald (P&H) 2911. He further submits that there are total 14 prosecution witnesses cited in the list of witnesses, out of which, none has been examined till date and the trial is likely to take long time in conclusion.

5. Per contra, learned State counsel has filed custody certificate today in the Court, which is taken on record and opposes the prayer of the petitioner on the ground that the petitioner is a habitual offender and involved in 08 more cases and there is sufficient evidence to prove the complicity of the petitioner, however, he could not controvert the fact that the alleged contraband involved in the present case, does not falls within the ambit of commercial quantity and out of 14 PWs, none has been examined till date.

6. Having heard learned counsel for the parties and after perusing the record of the case, it transpires that the petitioner is behind the bars from the last 07 months and 06 days. Investigation is complete. The final report under Section 173 Cr.P.C. was presented before the concerned Court. Charges were framed and trial of the case has not made much progress. Out of 14 prosecution witnesses, no PW has been examined so far.

7. A two Judge Bench of Hon’ble Supreme Court in “ Satender Kumar Antil vs. CBI ” , (2022) 10 SCC 51 , with respect to prevailing conditions of undertrial prisoner in India has observed:

“6. Jails in India are flooded with undertrial prisoners. The statistics placed befo