Advocates:
Advocate Appeared:
For the Appellant :Mayur Singla, Advocate
For the Respondent: Mr. Adeshwar Singh Pannu, AAG, Punjab.

JUDGMENT :

Jasgurpreet Singh Puri, J. (Oral) -

The present is a second petition filed under Section 439 of the Code of Criminal Procedure for the grant of regular bail to the petitioner in FIR No.56 dated 17.08.2022, under Sections 18 and 22 of the NDPS Act, registered at Police Station Bakshiwala, District Patiala, Punjab.

2. Learned counsel for the petitioner submitted that the petitioner is in custody from 17.08.2022, which is almost 1 year and 8 months and after completing of the investigation, the police presented the challan on 08.02.2023 and thereafter, the learned trial Court framed charges on 18.05.2023 and more than 10 months have elapsed after the framing of the charges and till date not even a single prosecution witness has been examined by the prosecution. He further submitted that the allegations against the petitioner were with regard to recovery of 3 kgs. of opium and it was a case which was planted upon the petitioner, which is also substantiated from the fact that the petitioner has clean antecedents and he is not involved in any other case. He further submitted that there is no justification as to why the prosecution witnesses are not coming forward after the framing of the charges despite the fact that more than 10 months have elapsed since the learned trial Court has framed the charges. 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 affected. 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 Bikram Khan, submitted that so far as the custody of the petitioner is concerned, the same is not in dispute and charges were framed by the learned trial Court on 18.05.2023, which is more than 10 months ago and till date not even a single prosecution witness has been examined. He further submitted on instructions that the petitioner has clean antecedents and he is not involved in any other case. He has however opposed the grant of regular bail to the petitioner on the ground that there has been a recovery of 3 kgs. of opium from the petitioner which falls in the category of commercial quantity and therefore, the prayer of the petitioner is hit by the bar contained under Section 37 of the NDPS Act.

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

5. The petitioner is in custody from 17.08.2022, which is more than 1 year and 8 months and the allegations against him are with regard to recovery of 3 kgs. of opium, which falls in the category of commercial quantity because as per the NDPS Act, the commercial quantity for opium is defined as 2.5 kgs. As per the learned counsel for the parties, the petitioner has clean antecedents and he is not involved in any other case.

6. On a query being raised to the learned State counsel as to what is the justification as to why after a lapse of more than 10 months after the framing of the charges by the learned trial Court, no prosecution witness has been examined till date, to which on instructions from the concerned Investigating Officer