The judgment established that the prolonged incarceration and the absence of criminal antecedents can be considered in granting bail under Section 37 of the NDPS Act, even in cases involving commercial quantity of contraband.

JUDGMENT :

This is second bail application moved on behalf of the applicant seeking bail in relation to FIR No. 214 of 2020 for the offences punishable under Section 8/20/60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 registered at P.S. Lalkuan District Nainital.

2. The first bail application being BA1 No. 2060 of 2020 was dismissed as not pressed vide order dated 16.09.2022.

3. As per the prosecution, when the police party was on daily routine of patrolling to maintain peace and security during covid period they saw a vehicle (white in colour) UK04Z5454 coming from the Haldwani towards Lalkuan, they stopped the vehicle in which three persons were sitting and when asked to show the papers of the vehicle, then the two persons confessed that they have charas with them. The search was made before the gazetted officer and during search in a polythene 5.2kg charas was recovered from the possession of the present accused. In the back seat of the vehicle one another person namely Prakash Chandra was sitting from whose possession 4.9 kg charas was recovered.

4. The learned senior counsel for the applicant submits that the mandatory provisions of the NDPS Act have not been complied with and the applicant is innocent. The learned Senior Counsel further submits that this applicant has no criminal history and the charge sheet has already been filed on 17.11.2020, and charges have been framed. However, out of the 12 witnesses only three witnesses have been examined. Applicant is in jail since 01.08.2020.

5. Per contra, the learned State counsel seriously opposed the bail application by saying that by virtue of Section 37 of the NDPS Act, since the alleged recovered contraband is commercial quantity, therefore, the applicant is not entitled for bail.

6. At this juncture, it is necessary to reproduce Section 37 of the NDPS Act. The same reads as under:-

“37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

7. Section 37 of the NDPS Act is a very rigorous provision. As per Section 37 of the NDPS Act, the conditions which the Court has to examine are that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

8. In response to this, learned counsel for the applicant submits that no doubt, as per Section 37 of the Act, bail in such cases may not be granted, unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. But, denial of bail does not give unfettered liberty to the prosecution to keep a person in custody without conducting a trial.

9. Learned counsel for the applicant further submits that the applicant, who has already spent in custody more than three years, is entitled for bail, particularly when he has no criminal antecedents. In respect of the period of incarceration, which the applicant has suffered for more than three years, counsel for the applicant placed reliance on the judgment rend