JUDGMENT :

Pankaj Jain, J. (Oral)

1. This petition has been filed under Section 483 of BNSS, 2023 for grant of regular bail in case F.I.R. No.076 dated 08.09.2022 registered under Sections 22-61-85 of the NDPS Act (Section 27 of the NDPS Act added later on) at Police Station Naya Gaon, District SAS Nagar, Mohali (Punjab).

2. As per the case of the prosecution, during routine checking the petitioner was found to be in conscious possession of 12 injections of Buprenorphine and 9 vials of Avil Pheniramine Maleate Injection IP 10 ml each. He is guilty of being in possession of 23.929 grams of Buprenorphine which is commercial quantity being more than 20 grams. The petitioner is behind bars for more than 1 year and 11 months. Out of 12 cited witnesses only 3 could be examined till now.

3. Ld. Counsel further relies upon order passed by Apex Court in the case of Rabi Prakash Vs. The State of Odisha passed in Special Leave to Appeal (Crl.) No(s). 4169 of 2023 decided on 13.07.2023 wherein it has been held 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(l)(b)(ii) of the NDPS Act. "

4. Earlier to Rabi Prakash's case (supra) also Apex Court has consistently held that the prolonged incarceration has to be considered dehors bar contained under Section 37 of the NDPS Act. The Supreme Court in Special Leave to Appeal (Crl.) No.5530-2022 dated 22.08.2022 titled as "Mohammad Salman Hanif Shaikh vs. The State of Gujarat", held as under:-

"We are inclined to release the petitioner on bail only on the ground that he has spent about two years in custody and conclusion of trial will take some time.

Consequently, without expressing any views on the merits of the case and taking into consideration the custody period of the petitioner, this special leave petition is accepted and the petitioner is ordered to be released on bail subject to his furnishing the bail bonds to the satisfaction of the Special Judge/ concerned Trial Court.

The special leave petition is, accordingly, disposed of in the above terms.

Pending application(s), if any, shall also stand disposed of."

5. The above-said case was also a case under the NDPS Act, 1985 and the FIR had been registered under Sections 8(c), 21(c) and 29 of the said Act. The case of the prosecution therein was that the recovery from the said petitioner (therein) was of commercial quantity. The Supreme Court had observed that the concession of bail was granted to the petitioner (therein) only on the ground that he had spent about two years in custody and the conclusion of trial will take some time.

6. The Hon'ble Supreme Court in Criminal Appeal No.245/2020 dated 07.02.2020 titled as ''Chitta Biswas Alias Subhas Vs. The State of West Bengal" was pleased to grant concession of bail to the petitioner (therein) in a case where the custody was of 1 year and 7 months approximately. The relevant portion of the said order dated 07.02.2020 is as under: -

"Leave granted.

This appeal arises out of the final Order dated 30.7.2010 passed by the High Court of Calcutta in CRM No.6787 of 2019.

The instant matter arises out of application preferred by the appellant under Section 439 Cr.P.C. seeking bail in connection with Criminal Case No.146 of 2018 registered with Taherpur Police Station for offence punishable under Section 21-C of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According