IMPORTANT POINT
Prolonged incarceration and lack of criminal history can justify bail under the NDPS Act, overriding statutory restrictions.

JUDGMENT :

Rakesh Thapliyal, J.

1. Present applicant is seeking bail in relation to Case Crime No. 0071 of 2020 for the offences punishable under Section 8/20/60 of the of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”), Police Station – Pantnagar, District Udham Singh Nagar.

2. Learned counsel for the applicant submits that applicant is in jail since 21.03.2020 and there are in total 14 witnesses, however, uptil date only 5 witnesses have been examined. He further submits that applicant has no criminal history and co-accused Sunder Singh, Vishal Kakkar and Nandan Singh have already been enlarged on bail. So far as Sunder Singh is concerned, he has been enlarged on bail on the ground incarceration by the order dated 11.10.2023.

3. I have perused the order dated 11.11.2023 passed by this Court whereby co-accused Sunder Singh was enlarged on bail on the ground of incarceration. This Court while granting the bail to co-accused Sunder Singh referred the judgment of Hon’ble Supreme Court and has also dealt with Section 37 of the NDPS Act. The relevant extract of the order passed by this Court is quoted as under :

“16. 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 rendered by the Hon’ble Supreme Court in the case of Mohd Muslim @ Hussain v State(NCT of Delhi) 2023 SCC OnLine SC 352. Another judgment rendered by the Hon’ble Supreme Court in the case of Rabi Prakash vs. the State of Odisha 2023 SCC OnLine SC 1109 is also placed reliance upon by Mr. Sammal.

17. Learned counsel for the applicant also placed reliance upon a judgment rendered by the Hon’ble Supreme Court in the case of Dheeraj Kumar Shukla versus State of Uttar Pradesh, (2023) SCC OnLine SC 918, wherein, the Hon’ble Supreme Court, while granting bail to the accused from whom 92 kgs Ganja was recovered, observed as under:-

“It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of the Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, we are satisfied that the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.”

19. Having considered the submissions of the learned counsel for the applicant as well as Mr. Saurabh Pandey, Brief Holder for the State and in view of the observation made in the judgment, as relied upon by the learned counsel for the applicant, that 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 32(1(b)(ii) of the NDPS Act, there is no reason to keep the applicant behind the bars for an indefinite period. Further after taking into consideration the fact that the applicant has no criminal history, and he is in jail since for last more than three years, and only three witnesses out of total fourteen witnesses have been examined, the conditions, as stipulated under Section 37 of the Act, can be dispensed with at this stage.”

4. Other co-accused namely Vishal Kakkar was also enlarged on bail by order dated 09.11.2022 passed in BA2 No. 254 of 2022 and co-accused Nandan Singh was enlarged on bail by order dated 21.11.2023 passed in BA1 No. 1663 of 2020.

5. Mr. Saurabh Pandey, learned Brief Holder for the State, fairly submits that present applicant is in jail since 21.03.2020 and has no criminal history. He also admits that co-accused Sunder Singh has been