Advocates:
Advocate Appeared:
For the Appellant :Ms. Riffi Birla, Advocate
For the Respondent: Mr. Adeshwar Singh Pannu, AAG, Punjab.

JUDGMENT :

Jasgurpreet Singh Puri, J. (Oral) -

The present is a third petition filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner in FIR No.293 dated 07.12.2019, under Sections 21/61/85 of NDPS Act (Sections 18/23/29 of NDPS Act added later on), registered at Police Station Sadar Fazilka, District Fazilka.

2. Learned counsel for the petitioner has submitted that the petitioner is in custody for 4 years and 3 months and charges in the present case were framed on 10.03.2022 which is more than 2 years ago and till date only one prosecution witness has been examined. She submitted that it is a case where the petitioner has been falsely implicated and as per the allegations, the petitioner was allegedly going on a bullock cart which was checked by the BSF personnel and thereafter, there was alleged recovery of 2 kgs. and 156 grams of heroin, besides 45 grams of opium. She submitted that the petitioner is not involved in any other case and has got clean antecedents and has been falsely implicated at the instance of the police. She further submitted that be that as it may, the bar contained under Section 37 of the NDPS Act will not apply to the present petitioner in view of the long custody of the petitioner which comes out to be 4 years and 3 months and more than 2 years have elapsed after the framing of the charges but only one prosecution witness has been examined. She referred to the judgments of Hon'ble Supreme Court in Satender Kumar Antil Versus Central Bureau of Investigation and another [2022 (10) SCC 51], Mohd. Muslim @ Hussain Versus State (NCT of Delhi) [2023 AIR (SC) 1648], Dheeraj Kumar Shukla v. The State of Uttar Pradesh (Special Leave to Appeal (Crl.) No.(s) 6690 of 2022) and Rabi Prakash Versus State of Odisha, Special Leave to Appeal (Crl.) No.4169 of 2023 to contend that in the facts and circumstances of the present case and considering the custody of the petitioner, he may be considered for the grant of regular bail.

4. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab has submitted on instructions from ASI Raj Singh who is present in the Court that so far as the custody of the petitioner is concerned, the same is correct and the petitioner is having clean antecedents and he is not involved in any other case. He has however opposed the grant of bail to the petitioner on the ground that since the recovery falls in the category of commercial quantity, the prayer of the petitioner is hit by the bar contained under Section 37 of the NDPS Act. He also submitted on specific instructions that after the framing of the charges on 10.03.2022 which is more than 2 years ago only one prosecution witness has been examined.

5. I have heard the learned counsel for the parties.

6. It is a case where the petitioner has already faced incarceration for more than 4 years and 3 months and the charges in the present case were framed on 10.03.2022 and more than 2 years have elapsed after the framing of the charges but only one prosecution witness has been examined as per learned counsel for the parties. The petitioner is stated to be not involved in any other case and is having clean antecedents. Since the alleged recovery from the petitioner falls in the category of commercial quantity, it will be necessary to consider the effect of Section 37 of the NDPS Act in the present case.

7. On a query being raised to the learned State counsel as to what was the justification as to why only one prosecution witness has been examined even after more than two years have elapsed after the framing of the charges to which after receiving instructions from the concerned officer who is present in the Court, he could not give any justification.

8. Hon'ble Supreme Court in Satender Kumar Antil Versus Central Bureau of Investigation and another (Supra) has discussed this serious issue. Para 49 of the aforesaid judgment is reproduced as under:-

"49. Sub-section (1) mandates courts to continue the proceedings