Advocates:
Advocate Appeared:
For the Appellant :Mr. L.S. Sekhon, Advocate
For the Respondent: Mr. Tarun Aggarwal, Sr. DAG

JUDGMENT :

Pankaj Jain, J.

This petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case F.I.R. No.285 dated 26.09.2022 registered for the offences punishable under Sections 15-C, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act') at Police Station Phillaur, District Jalandhar (Rural).

2. Custody Certificate of the petitioner has been filed today in Court. The same is taken on record.

3. As per the case of the prosecution a secret information was received to the effect that the present petitioner along with co-accused are indulging in drug trade by procuring the same from M.P. and are waiting for their customer in Truck bearing No.PB-08-EW-4619. It is claimed that after the raid was conducted, the petitioner was found sitting on the driver seat.

On search 150 kg of poppy husk was found concealed under the bags of onions in the said truck and the same was recovered.

4. Counsel for the petitioner submits that dehors the merits of the case the petitioner has already faced incarceration for more than 1 year, 06 months and 17 days and has clean antecedents. Challan already stands presented and the charges were framed. Despite the fact that the challan was presented on 17th of March, 2023 and the charges were framed on 15th of May, 2023 till now only 2 out of 12 cited witnesses could be examined.

5. Learned counsel for the petitioner 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."

6. 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 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."

7. 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.

8. Supreme Court in order dated 07.02.2020 passed by the Hon'ble Supreme Court in Criminal Appeal No.245/2020 titled as ''Chitta Biswas Al