ORDER :

Kirti Singh, J. (Oral)

1. The jurisdiction of this Court under Section 439 Cr.P.C. has been invoked for grant of regular bail to the petitioner in case FIR No.49 dated 01.06.2022, under Sections 22-61-85 of NDPS Act, registered at Police Station Qila Lal Singh, District Gurdaspur.2. The brief facts of the case are that on 01/06/2022, a secret information was received by police and on raid conducted by the police party at the house of petitioner, 250 intoxicating tablets were recovered under the cover of double bed and 140 intoxicating tablets were recovered from accused petitioner-Jagandeep Singh which was carried by him in a poly bag kept in right pocket of his trousers.

3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case and there is non-compliance of mandatory provisions of Sections 42 and 50 of the NDPS Act. He also submits that there are set of different recoveries, however a single memo has been prepared by the police authorities. He has undergone an actual custody of 01 year, 06 months and 19 days and there is no other case pending against him.

4. Learned counsel for the petitioner further submits that charges were framed way back on 14.03.2023 and out of total 07 prosecution witnesses, three has been examined till date. The conclusion of the trial will take a considerable period of time. Further reliance is being placed upon 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(1)(b)(ii) of the NDPS Act."

5. Per contra, learned State counsel has vehemently opposed the submissions made by the learned counsel for the petitioner by submitting that commercial quantity of contraband has been recovered from the petitioner. Therefore, in view of the bar contained under Section 37 of NDPS Act, the petitioner is not entitled to the concession of bail. He has filed custody certificate dated 28.08.2024 in Court today and the same is taken on record. As per custody certificate, the petitioner has undergone actual custody of 01 year, 06 months and 19 days and it is not disputed that there is no other criminal case pending against him. He on instructions from SHO Surinderpal Singh submits that charges were framed on 14.03.2023 and out of total 07 prosecution witnesses, only three prosecution witnesses have been examined till date.

6. Heard the rival submissions made by learned counsel for the parties.

7. 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 order dated 22.08.2022 passed by the Supreme Court in Special Leave to Appeal (Crl.) No.5530-2022 titled as "Mohammad Salman Hanif Shaikh Vs. The State of Gujarat", had 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 ba