Advocates:
Advocate Appeared:
For the Appellant :Mr. Ranbir Singh Sekhon, 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 the grant of regular bail to the petitioner in FIR No.48 dated 17.03.2022, under Section 15 of the NDPS Act (Section 25 of the NDPS Act added later on), registered at Police Station Guruharsahai, District Ferozepur, Punjab.

2. Learned counsel for the petitioner submitted that it is a case where allegedly the petitioner was travelling in a truck and was sitting on the cabin seat of the truck and there had been a recovery of 70 kgs. of poppy husk from the said truck and so far as the present petitioner is concerned, he was only a passenger and he has clean antecedents and is not involved in any other case. He further submitted that the aforesaid quantity is marginally higher than the commercial quantity as defined under the NDPS Act but considering the fact that now the petitioner is in custody for more than 2 years and the charges in the present case were framed by the learned trial Court on 01.10.2022, which is more than 1 year and 6 months ago and till date only 3 prosecution witnesses have been examined and that too in chief only and there has been an unreasonable delay in the trial of the case resulting in long incarceration of the petitioner, the bar contained under Section 37 of the NDPS Act will not apply to the petitioner considering the aforesaid fact and circumstances qua the petitioner. He referred to a judgment of the Hon'ble Supreme Court in Satender Kumar Antil versus Central Bureau of Investigation and another, [2022 (10) SCC 51] and contended that when there is a long custody, which is not attributable to the accused and the delay has been caused by the prosecution, then Rights under Article 21 of the Constitution of India are effected. He also referred to another judgment of Hon'ble Supreme Court in "Mohd. Muslim @ Hussain versus State (NCT of Delhi)", 2023 AIR (SC) 1648, wherein the scope of Section 37 of the NDPS Act vis-a-vis Article 21 of the Constitution of India has been discussed by taking a serious view with regard to long trial. He further referred to a judgment of Hon'ble Supreme Court in "Dheeraj Kumar Shukla versus The State of Uttar Pradesh", 2023 SCC Online SC 918 and also a judgment of Hon'ble Supreme Court in "Rabi Prakash versus The State of Odisha", Special Leave to Appeal (Criminal) No.4169 of 2023 to contend that long custody itself is a ground for grant of bail notwithstanding the bar contained under Section 37 of the NDPS Act.

3. On the other hand, Mr. Adeshwar Singh Pannu, AAG, Punjab, on instructions from ASI Kuldeep Singh, submitted that it is correct that the petitioner is in custody for more than 2 years and more than 1 year and 6 months have gone by after the framing of the charges and only 3 prosecution witnesses have been examined that too in chief only. He further submitted on instructions that the petitioner has clean antecedents and he is not involved in any other case.

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

5. Although the recovery was from the truck and not from the person of the petitioner, who was travelling in the truck but the custody of the petitioner has come out to be more than 2 years and he is stated to be not involved in any other case and has clean antecedents. The alleged recovery from the truck was 70 kgs. of poppy husk, which is marginally higher than the commercial quantity, which is defined at 50 kgs. under the NDPS Act. As per the learned counsel for the parties, more than 1 year and 6 months have elapsed after the framing of the charges and only 3 prosecution witnesses have been examined and that too in chief only. No justification has come forth from the learned State counsel as to why there was such a delay.

6. Hon'ble Supreme Court in Satender Kumar Antil's case (supra) has discussed this serious issue with regard to delay in trial and its effect on the Right to Life of an individual under Article 21 of the Const