The fundamental right to personal liberty under Article 21 of the Constitution of India should override the statutory embargo created under the NDPS Act in cases of prolonged incarceration.

JUDGMENT :

Alok Kumar Verma, J.

Present Application has been filed for grant of regular bail in connection with the Case Crime No.355 of 2020, registered at police station Patel Nagar, District Dehradun.

2. Applicant is in judicial custody under Section 8 read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “Act, 1985”).

3. As per the prosecution case, the informant – Sub Inspector Naveen Joshi was checking the vehicles along with other police personnel on 12.10.2020. They saw the applicant coming, who had a black colored plastic polythene in his hand. Seeing the police, he started going back. On suspicion, he was apprehended. While asking his name and address, the reason for his running away was asked. He told that he had drug capsules. An information was given to Mr. Anuj Kumar, Circle Officer of Police, from the mobile phone of the informant. Mr. Anuj Kumar, Circle Officer, reached the spot. Applicant was searched in front of him. 560 capsules were recovered from his polythene. In spite of an endeavour, no public witness could be secured. After usual investigation, a charge-sheet was laid before the competent court. According to the prosecution, Tramadol was recovered from the applicant’s polythene. The total weight of the said recovered Psychotropic Substances was 336 grams.

4. Heard Ms. Gurbani Singh, learned counsel for the applicant and Mr. M.K. Chand, learned A.G.A. for the State.

5. This Court is informed by learned counsel for the parties that the charge-sheet was filed on 08.06.2021 and charge was framed on 08.09.2021, but only four witnesses have been examined by the prosecution till date.

6. Ms. Gurbani Singh, Advocate contended that the applicant has been falsely implicated in the present matter. Nothing was recovered from his possession. The said recovery was planted. There was no independent witness at the time of the alleged recovery. Provisions of Section 50 of the Act, 1985 were not followed. Applicant does not have any criminal antecedents. He is in judicial custody since 13.10.2020, whereas only four witnesses have been examined by the prosecution. He is a permanent resident of District Dehradun, therefore, there is no chance of his absconding.

7. Mr. M.K. Chand, learned A.G.A. for the State has opposed the bail application. However, he has fairly conceded that only four witnesses have been examined by the prosecution till date and there is nothing on record to indicate that the applicant had earlier been involved in any unacceptable activity.

8. Personal liberty under Article 21 of the Constitution of India is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

9. In Rabi Prakash vs. The State of Odisha, 2023 0 Supreme (SC) 707, the Hon’ble Supreme Court observed;

“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.”

10. Having considered the submissions of learned counsel for the parties and in the facts and circumstances of the case, there is no reason to keep the applicant behind the bars for an indefinite period, therefore, without commenting on the merits of the case, this Court is of the view that the applicant deserves bail at this stage.

11. The First Bail Application (No.1337 of 2022) is allowed.

12. Applicant – Lavakush Verma is ordered to be released on bail subject to his furnishing a personal bond and two reliable sureties, each in the like amount, to the satisfaction of the court concerned with the following conditions:-

(i) Applicant shall attend the Trial Court regularly and he shall not seek any unnecessary adjournment;

(ii) Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fac