JUDGMENT :

Anoop Chitkara, J.

1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

2. Per paragraph 8 of the bail application and paragraph 11 of the status report, the accused has the following criminal antecedents:

3. The facts and allegations are taken from the status report filed by the State. On 14.08.2023, based on chance recovery, the Police seized 15 Buprenorphine injections IP Leegesic. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

4. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family. Petitioner's counsel on instructions further submits that petitioner shall not indulge himself in the offence involving the commercial or intermediate quantity or the offence which falls under Sections 19/24/27-A of NDPS Act. He further submits that if the petitioner involves himself in the said offences, he has no objection if the State files an application for cancellation of bail in all FIRs under NDPS Act pending against the petitioner.

5. The State's counsel opposes bail and refers to the status report.

6. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

7. Per the custody certificate dated 01.04.2025, the petitioner's custody in this FIR is 01 year, 07 months and 17 days.

8. 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[1].

Supreme Court of India, in

, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023

9. However, the petitioner is entitled to bail because Hon'ble Supreme Court had granted bail on prolonged custody in the following judicial precedents:

1) In Chitta Biswas v. The State of West Bengal, CrA 245-2020, decided on February 7, 2020, Hon'ble Supreme Court holds, According to the prosecution, the appellant was found to be in possession of narcotic substance i.e. 46 bottles of phensydryl cough syrup containing codeine mixture above commercial quantity.

The appellant was arrested on 21.07.2018 and continues to be in custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.

Without expressing any opinion on the merits or demerits of the rival submissions and considering the facts and circumstances on record, in our view, case for bail is made out.

2) In Rajib Dey v. The State of West Bengal, decided on 20 Jan 2023, SLP (Crl) 8895-2022, Hon'ble Supreme Court holds,

[2] . The petitioner seeks his enlargement on regular bail in a Case arising out of FIR No.341/2021, dated 06.12.2021, registered at Tahirpur Police Station, District Nadia, West Bengal, under Section 21(c) of the NDPS Act and Section 25/27 of the Arms Act. As per the allegation, 30 bottles of phensedyl syrup containing codeine phosphate were recovered from the petitioner. There are no criminal antecedents of the petitioner. The petitioner is in custody since 18.02