JUDGMENT :

Kuldeep Tiwari, J. (Oral)

Through the instant petition, filed under Section 483 of the BNSS, 2023, the petitioner prays for grant of relief of regular bail in case FIR No.146 dated 06.12.2023 (Annexure P-1), under Sections 22 of the NDPS Act, 1985 (charges framed under Sections 22/29 of the NDPS Act), registered at Police Station Sadar Hariana, District Hoshiarpur.

2. On asking for the relief (supra), learned counsel for the petitioner submits, that as on today, no prosecution witness has been examined, out of total 10 witnesses, as cited by the prosecution, in the final report. She further submits that the petitioner has suffered incarceration of more than 01 year, as on today. Finally, she submits that the petitioner is not involved in one other case, nor he has been previously convicted, in any other case, and has clean antecedents.

3. In the instant case, the petitioner was apprehended with 259 grams of intoxicant powder, containing the salt 'Tramadol Hydrochloride' which undisputedly falls under the ambit of commercial quantity, as per the schedule attached with the NDPS Act.

4. Though the learned counsel for the petitioner had addressed the arguments on merits of the instant case, to the effect, that some of the mandatory provisions of the NDPS Act, has not been complied with. However, this Court, refrains itself from making any observation on such submissions.

5. In deference to the directions issued by the coordinate Bench of this Court, by drawing an order dated 16.10.2024, status report dated 09.12.2024, by way of affidavit of Mr. Narinder Singh, PPS, Deputy Superintendent of Police, Sub Division Rural, District Hoshiarpur, on behalf of the respondent-State of Punjab, furnished by the learned State counsel today in the Court. The same is taken on the record.

6. Learned State counsel, on instructions imparted to him from the investigating officer concerned, opposed the grant of concession of regular bail to the petitioner, on the ground, that the recovery effected in the instant case, falls under the ambit of commercial quantity, and therefore, the rigor of Section 37 of the NDPS Act, comes into operation.

7. Learned State counsel has also placed on record the custody certificate dated 12.12.2024, qua the petitioner, today in the Court. The same is taken on record. He further on instructions submits that challan stands presented on dated 13.03.2024, and charges were framed on dated 02.08.2024.

8. It is not in dispute that no prosecution witness has been examined, out of total 10 witnesses, as cited by the prosecution in the final report, whereas, the petitioner has suffered incarceration of 01 year, and 05 days, as on today. So far as, the rigor of Section 37 of the NDPS Act, is concerned, this Court, in a number of judgments has already observed that long incarceration would dilute the rigor of Section 37 of the NDPS Act.

9. This Court finds vigor from the judgment of the Hon'ble Supreme Court in 'Rabi Prakash Versus The State of Odisha', Special Leave to Appeal (Criminal) No.4169 of 2023, wherein, the Court has also discussed the effect of Section 37 of the NDPS Act, in such like cases of long custody. The relevant portion of the aforesaid judgment contained in para No.4 is reproduced 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.'

10. In the rece